Mr. HAYS. Yes; I would attach considerable weight to that, and I think the origin of the proposal, what it stems from, the ferment of opinion that produced it on the part of the people affected-those are all matters of considerable weight.

Mr. ALLEN of California. It would seem to me also from some of the things you said, for example-the Jefferson principle that "all government derives its just powers from the consent of the governed," the fact that Madison had indicated a local municipal legislature was to be formed, the fact that those gentlemen had something to do with the Constitutional Convention, and that Congress would be the local legislature-I think that the only power that could be given the District would be derived from Congress, and that therefore they must have had some different conception of the derivation of the power within the District than the general application of those principles.

Mr. HAYS. Yes; I think that is a good point; and, of course, it is in a way a rebuke to those who make it categorical or who present a categorical formula. I think that needs to be emphasized in all of these discussions. I mean, that simply illustrates the fact that the whole democratic concept has an infinite variety of problems and its application is a continuing challenge to us. That is one point I wanted to mention; that the fact that it is difficult and a complicated problem should not deter us from attempting it.

Mr. ALLEN of California. Would it be your opinion that S. 1527 was a type of legislation Madison had in mind?

Mr. HAYS. You are speaking of the Senate bill?

Mr. ALLEN of California. Yes.

Mr. HAYS. It seems to me that in the main it does; yes, sir.

Mr. ALLEN of California. Thank you.

Mr. HARRIS. I would like to say I appreciate my colleague coming here and giving his views on this highly important matter. As he knows, I have the highest respect for him and his sincere desire to help on this matter, and consequently we are indebted to him for coming and giving us his views.

Now you think this should remain a Federal city?

Mr. HAYS. Yes, sir; I think the two ideas are not incompatible at all. I think that it can be retained as a Federal city.

Mr. HARRIS. You don't contend that the people should be given just a chance to vote so that they can vote for something?

Mr. HAYS. I am not sure I understand the implication of the question.

Mr. HARRIS. I mean by that just to vote for someone, to say that I am voting-I want a vote, just to vote, without any knowledge whatsoever or feeling on their part as to whether or not their vote will actually mean that they are making a contribution to the democratic processes of the country.

Mr. HAYS. I agree with the suggestion that it should not be that but something which is right.

Mr. HARRIS. Then the question comes as to what under the Constitution can this committee give to the people, that is, within the constitutional provisions, and the fact that it is a Federal city and belongs to the people of the United States. Then what can we give them that will be free, insofar as local self-government is concerned? Mr. HAYS. I know it is like a child learning to swim. You cannot learn all of the dangers or benefits of the voting privilege until it has been tried. Not until they have learned how by doing it.

Mr. HARRIS. Well my colleague certainly knows I will say he knows as a fact that in 1802 it was tried out; in 1812 it was tried in a different way; then in 1820 it was tried in a different way; again in 1848 and again it was tried in another way; then again in 1867 it was tried in another way. Does that mean Congress has been dilatory in trying to solve this problem of the inherent right of the people in this particular area?

Mr. HAYS. Well for several decades different men tried to develop the airplane and could not do it, but some years ago two young men, two brothers, went down to North Carolina and did it, and I think that is the answer.

Mr. HARRIS. There was no constitutional question involved in that scientific experiment, was there?

Mr. HAYS. I don't know.

Mr. HARRIS. You made the analogy.

Mr. HAYS. I think it is a good one, sir. I think the nineteenth century Members failing to solve it does not mean that we cannot. Mr. HARRIS. But the gentleman relied on James Madison at the outset of his statement. We cannot overlook that, can we?

Mr. HAYS. No, sir.

Mr. HARRIS. I am sorry. I do have the highest regard for my colleague, but those are fundamental questions and these questions must be met if we are to arrive at a just conclusion. That is what we want. For instance, this bill gives the legislative assembly or council certain prerogatives and authority with reference to the District schools. The city of Little Rock has no such authority.

Mr. HAYS. You certainly can do a job which will be very notable. Mr. HARRIS. The superintendent of schools came in yesterday and he read off to this committee some very fundamental things with reference to schools that are vital to every man, every family in this District, or every other locality. Then the question of the Recreation Board came in and very fundamental issues were involved, social problems, and the thought was as to what would happen should this legislation be enacted here in the District of Columbia. A man who worked with it year after year came and expressed his viewpoint as to what a great disorder would probably prevail if the problem was not met. Then we had a gentleman speaking for the Public Library this morning. I wish we had time to discuss them further.

Mr. HAYS. The gentleman understands that I am not defending all of the provisions of the bill. I am saying on the fundamental question, though, that you can and should act, and I am sure of that.

Mr. HARRIS. Well there are a lot of things to be considered in the way of technical matters before the Banking and Currency Committee on which the committee should act after getting general views, but what are you going to act on?

Mr. HAYS. Well I would take in substance the Kefauver approach with some of the amendments the gentlemen have suggested.

I appreciate the patient hearing that you gentlemen have given

me and I feel apologetic in taking so much of your time.

Mr. HARRIS. We appreciate your coming here and making this

statement.

Mr. HAYS. I haven't had such a compliment since I was asked to make the Fourth of July speech at Centerville.

Mr. HARRIS. Thank you very much.

Now we have Mr. Lloyd N. Cutler, of the Washington home rule Committee.

Mr. CUTLER. Mr. Chairman, I am accompanied by Mr. Sturgis Warner.

Mr. HARRIS. About how much time would you require?

Mr. CUTLER. What we have to say, Mr. Chairman, should only take 4 or 5 minutes. We do have a prepared statement which we would like to file with the committee.

Mr. HARRIS. Very well. It will be received at this point. (The statement is as follows:)

STATEMENT OF LLOYD N. CUTLER, AND STURGIS WARNER, WASHINGTON HOME

RULE COMMITTEE

The Washington Home Rule Committee supports and urges immediate passage of a bill patterned along the lines of the Kefauver bill, S. 1527, as a realistic and workable means of presently providing a measure of home rule for the District of Columbia.

Our committee was organized solely because of our desire for home rule We are not presenting the views of any particular business or social group or of any special interest. Our members include people in the legal and medical professions, businessmen, Federal employees, and housewives. We have representation on the board of trade and the District Bar Association. Most of us own our homes. A number of us were born here. We pay taxes here. We would like to have a say in how our municipal government is run.

We believe that the right of local self-government is a basic right of our American democracy which must be open to all citizens. We do not see why we who live in the District should be denied that right.

We have previously expressed our views in testimony before this committee on the Auchincloss bill last year and before the Senate District Committee on the Kefauver bill this year. We believe that we have been helpful in both cases. We hope that our appearance here will be constructive. We would like to help the committee reach a decision recommending that the House of Representatives join the Senate in providing a sound structure for local self-government. nical difficulties or minor necessary changes in the bill must not stand in the way of its early passage.

Tech

There is no point in arguing about the details of the various bills unless the basic merits of home rule are first accepted. This subcommittee has indicated that it still has some doubts as to the merits of home rule as such. We would first like to address ourselves to the general objections which have been voiced by the members of this committee in the hearings to date.

Argument that the Kefauver bill does not provide true home rule

Some of the committee members have suggested that the various home rule bills are misleading because they do not provide true home rule. Some witnesses have suggested that true home rule could be obtained only by an amendment to the Constitution to permit District of Columbia participation in national elections and District representation in Congress. We have nothing against such a constitutional amendment, but we would like to have a measure of self-government now. If we cannot achieve the status of a self-governing State we would at least like to achieve the status of a self-governing city. That would be a start on home rule, at least. It would put us roughly in the position of Hawaii, Alaska, or Puerto Rico. These territories have been told that they must prove that they can govern themselves before they are granted the right to participate in national elections as States. That is all we are asking for now.

Argument that Washington should not have local self-government because it is the Federal City

It has been argued that because Washington is the seat of the Federal Government it would be improper to permit local citizens to participate in local government by the electoral process.

Of course Washington is the Federal City. Washington's Federal buildings and monuments and parks and its Federal functions belong to the people of the United States as a whole. Obviously the people of Washington should have no more control over these Federal properties and functions than any other group of people living in any one part of the country should have.

On the other hand there are thousands of private homes, privately owned stores and businesses in the District, which are no more the property of the inhabitants of California or Texas or Minnesota than the homes and stores in these States are the property of the residents of the District.

Similarly there are governmental functions here of a strictly local nature which are of no interest to the inhabitants of the 48 States. These have always been recognized by the Congress as District matters, as distinguished from Federal matters. This distinction between District and Federal affairs is the basis for the present division of responsibilities between the District Government and Federal authority. There is nothing in the Kefauver bill that would change this basic principle. If it is proper for the Congress to grant some strictly local powers to the appointed Commissioners of the District, as Congress has already done, it is equally proper for the Congress to grant to an elected council slightly broader powers of a strictly local nature. In both cases the local government is absolutely answerable to the Congress. In neither case is any measure of control over Federal matters vested in the local governing body. We agree with the committee that essential Federal interests in Washington must remain under the direct control of Congress. The Kefauver bill is designed with these basic principles in mind. Argument that the Kefauver bill does not relieve the congressional burden.

It is of course true that the Kefauver bill would leave the congressional Committees on the District of Columbia with some continuing burden of work and responsibility. This of course is necessary and proper, since the Congress continues to be constitutionally charged with over-all supervision of District matters. The Kefauver bill affirms the continuing responsibilities of the committees, but lightens their burden of detailed work, by shifting the bulk of it to the locally elected city council. The bill relieves the full Congress of the cumbersome burden of spending 2 days of each valuable month on District details.

The shift of work to the Council is exactly like the delegation of duties which the top management of any well-run large organization, whether public or private, must make today to its operating organization down the line. Today most large organizations are too complex and the number of decisions too great to permit the top management to spend its time on daily details. Decisions must be made down the line, though over-all responsibility remains at the top. Occasionally, of course, a decision made down the line is reversed by top management upon review, but these are rare.

In the same way under the Kefauver bill, it is recognized that a decision of the City Council may occasionally be reversed by the Congress. It is our firm belief that this will happen only rarely. The near presence of Congress' continuing power to investigate and overrule will bring ready conformity of District legislation to congressional policy.

The Kefauver bill will relieve the District Committee of such details as starling and weed control, but will preserve its continuing control over the policies of the District government.

Argument that the Kefauver bill is unconstitutional

The subcommittee naturally desires such assurance as it can obtain that the Kefauver bill is constitutional.

This question divides itself in two parts, whether home rule itself is constitutional, and whether particular features of particular home-rule bills are constitutional.

On the first question, there is hardly any room for argument. The Federalist Papers were written by Madison, and other drafters of the Constitution, for the specific purpose of explaining the recently drafted constitution and urging its ratification by the States. In one of these papers (No. 43) Madison said of the residents of the proposed Federal district that: "a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them.

The constitutionality of the particular bills is equally clear. A large number of eminent constitutional lawyers in private practice have rendered exhaustive opinions on the constitutionality of the Auchincloss bill, both in its original and in its final form in the Eightieth Congress. In addition, the legislative counsel of the House of Representatives has rendered an opinion on the subject. Most of these opinions appear in the hearings on the Auchincloss bill; all are available to the subcommittee. In addition, the Kefauver Subcommittee of the Senate received further legal opinions during its consideration of S. 1527 and other bills in this session.

Without reviewing these opinions in detail in the short space of this letter, it is sufficient to say here that they overwhelmingly support the constitutionality

of a delegation of legislative authority to an elected City Council of the District. These conclusions were based on the Supreme Court cases which have consistently upheld the constitutionality of delegations of legislative authority to the legislatures of the territories, and on the decisions of the courts holding that the power of the Congress over the District is analogous to its power over the territoriesan absolute, plenary power. A major feature of the Kefauver bill is the provision for a concurrent resolution to override legislative proposals of the District Council. The constitutionality of such a procedure has recently been sustained by the Attorney General in an opinion rendered in connection with its proposed use in the Presidential Reorganization Act of 1949. (S. Rept. 232, 81st Cong., 1st sess, pps. 18-20.)

We believe that these many favorable opinions should convince the committee that at the very most there is so little doubt as to the constitutionality of the Kefauver bill that the Congress should pass it, since only by court test after enactment can the matter ever be resolved. It is our considered opinion, after lengthy study of the authorities, that there is no doubt as to the general validity of the Kefauver bill.

Argument that the so-called dual-voting part of the Kefauver bill is illegal or improper At the outset it should be emphasized that the term "dual voting" is a misnomer. No one under the Kefauver bill could vote in two places for the same official. The vote in the District would be for District officials only. The vote in the home State would be for President, Senators, and Congressmen, State officials and possibly minor local officials of political subdivisions of the State.

Despite the fact that there is no overlapping vote permitted by the bill, some witnesses have attacked the voting provisions of the bill as being fundamentally wrong or improper.

It is true that the voting arrangements in the bill are unusual; however, they are not unique. It is an unusual arrangement designed to take care of an unusual situation. That does not make it illegal or improper. On the contrary, it is unquestionably desirable to give the local vote to the many Federal employees who are resident here during their entire adult lives but who must maintain legal domicile elsewhere in order to maintain their civil-service position. Similar arrangements have been allowed in some of the outlying towns in Maryland for the same reason that they are included in the Kefauver bill-in order to allow the large number of resident, tax-paying Federal employees to vote. Accordingly, unless there is a clear legal ground for condemning the arrangement, it should be permitted to remain in the bill.

A question has been raised as to whether the so-called dual-voting provisions would cause difficulties in determining the domicile of a person who voted both in local elections in the District and in national elections in one of the States. The place of voting is of course only one of the indicia which enter into the determinations of questions of domicile. We believe that any difficulties in this regard can be effectively cured by striking the period at the end of section 1206 (a) of the Kefauver bill, and by adding the following: ", nor shall the registration for or the casting of a vote in any election provided for herein be construed as evidence of his domicile in the District."

In this way it will become clear that it is the intention of the Congress that the question of the person's domicile shall not be governed by the fact that he happens to vote in the District.

Apart from the domicile question above discussed, a further objection to the so-called dual-voting provision has been raised because of the fact that, during the hearings on the Auchincloss bill, 8 of the 48 States indicated that voting in district elections by registered voters in those States might disqualify them for the time being for further voting under the laws of such States. Two other States expressed no opinion as to whether such voting in District elections would affect home voting rights. Thirty-six States expressed the opinion that there would be no objection to the proposed arrangement.

The temporary difficulties with respect to voting in these States should of course be straightened out. The remedy lies with the States, however, and not with the Congress. If the dual-voting provisions are retained and the bill is enacted there will be an incentive on these States to amend their election laws so as to take care of their voters who live and wish to vote in the District. There would be no incentive to pass such amendatory legislation until and unless the Kefauver bill is passed. Until such legislation is passed, the voters of those States who live here could simply refrain from voting here.

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