If equal protection of the law commands electoral districts of equal populations, then most ratifying states violated the 14th Amendment the moment it went into effect in 1868. In 1962, scotus overturned 120 years of stare decisis and traditions going back to our early colonial days when it determined apportionment of legislative districts was not a strictly political matter, but also justiciable.1 Scotus’ abuse went further in 1964 when it determined that equal protection not only meant “one man one vote” among state assemblies and the US House of Representatives, but also applied to state senate districts.2 The court claimed the equal protection clause of the 14th Amendment requires substantially equal legislative representation for all citizens in a state regardless of where they reside.
In this breathtaking assault on separation of powers, a panel of lawyers not only ordered revisions to nearly every state constitution, it granted political power to the unrepublican branch of government. It wasn’t supposed to be this way.
To rejoin the Union, the reconstructed rebel states submitted their new constitutions to congress for approval. Among the requirements was state incorporation of the 14th Amendment, and a structure of government that met the US Constitution’s Article IV § 4 guarantee of republican government. From Associate Justice John Marshall Harlan’s dissent to Reynolds v. Sims (1964):3
Of the twenty-three loyal states which ratified the Amendment before 1870, five had constitutional provisions for apportionment of at least one house of their respective legislatures which wholly disregarded the spread of population. Ten more had constitutional provisions which gave primary emphasis to population, but which applied also other principles, such as partial ratios and recognition of political subdivisions, which were intended to favor sparsely settled areas. Can it be seriously contended that the legislatures of these states, almost two-thirds of those concerned, would have ratified an amendment which might render their own states’ constitutions unconstitutional?
Nor were these state constitutional provisions merely theoretical. In New Jersey, for example, Cape May County, with a population of 8,349, and Ocean County, with a population of 13,628, each elected one state senator, as did Essex and Hudson counties, with populations of 143,839 and 129,067, respectively. In the House, each county was entitled to one representative, which left 39 seats to be apportioned according to population. Since there were 12 counties besides the two already mentioned which had populations over 30,000, it is evident that there were serious disproportions in the House also. In New York, each of the 60 counties except Hamilton ounty was entitled to one of the 128 seats in the Assembly. This left 69 seats to be distributed among counties the populations of which ranged from 15,420 to 942,292. With seven more counties having populations over 100,000 and 13 others having populations over 50,000, the disproportion in the Assembly was necessarily large. In Vermont, after each county had been allocated one Senator, there were 16 seats remaining to be distributed among the larger counties. The smallest county had a population of 4,082; the largest had a population of 40,651, and there were 10 other counties with populations over 20,000.
The ten “reconstructed,” former rebel states were required to ratify the 14th Amendment before readmission to the Union. The Constitution of each was scrutinized in Congress. Debates over readmission were extensive. In at least one instance, state legislative apportionment was expressly called to the attention of Congress. Objecting to readmitting Florida, Mr. Farnsworth stated on the floor of the House:
“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. The sparsely populated parts of the State are those where there are very few negroes, the parts inhabited by the white rebels, the men who, coming in from Georgia, Alabama, and other states, control the fortunes of their several counties. By this constitution, every county in that state is entitled to a representative. There are in that state counties that have not thirty 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.”
The response of Mr. Butler is particularly illuminating:
“All these arguments, all these statements, all the provisions of this constitution have been submitted to the Judiciary Committee of the Senate, and they have found the Florida constitution republican and proper. This constitution has been submitted to the senate, and they have found it republican and proper. It has been submitted to your own Committee on Reconstruction, and they have found it republican and proper, and have reported it to this House.”
It is incredible that congress would have exacted ratification of the 14th Amendment as the price of readmission, would have studied the state constitutions for compliance with the Amendment, and would then have disregarded violations of it.
The facts recited above show beyond any possible doubt:
(1) That congress, with full awareness of and attention to the possibility that the states would not afford full equality in voting rights to all their citizens, nevertheless deliberately chose not to interfere with the states’ plenary power in this regard when it proposed the 14th Amendment;
(2) That Congress did not include in the 14th Amendment restrictions on the states’ power to control voting rights because it believed that, if such restrictions were included, the Amendment would not be adopted.
(3) That at least a substantial majority, if not all, of the states which ratified the Fourteenth Amendment did not consider that, in so doing, they were accepting limitations on their freedom, never before questioned, to regulate voting rights as they chose.
The problems which concern the court now were problems when the Amendment was adopted. By deliberate choice of those responsible for the Amendment, it left those problems untouched.
The court’s elaboration of its new “constitutional” doctrine indicates how far — and how unwisely — it has strayed from the appropriate bounds of its authority. The consequence of today’s decision is that, in all but the handful of states which may already satisfy the new requirements, the local district court and the state courts, are given blanket authority and the constitutional duty to supervise apportionment of the state legislatures. It is difficult to imagine a more intolerable and inappropriate interference by the judiciary with the independent legislatures of the states.
They present a jarring picture of courts threatening to take action in an area which they have no business entering, inevitably on the basis of political judgments which they are incompetent to make.
Generalities cannot obscure the cold truth that cases of this type are not amenable to the development of judicial standards. No set of standards can guide a court which has to decide how many legislative districts a state shall have, or what the shape of the districts shall be, or where to draw a particular district line. No judicially manageable standard can determine whether a state should have single member districts or multi-member districts or some combination of both. No such standard can control the balance between keeping up with population shifts and having stable districts. In all these respects, the courts will be called upon to make particular decisions with respect to which a principle of equally populated districts will be of no assistance whatsoever.
Although the Court — necessarily, as I believe — provides only generalities in elaboration of its main thesis, its opinion nevertheless fully demonstrates how far removed these problems are from fields of judicial competence. Recognizing that “indiscriminate districting” is an invitation to “partisan gerrymandering,” the Court nevertheless excludes virtually every basis for the formation of electoral districts other than “indiscriminate districting.” In one or another of today’s opinions, the court declares it unconstitutional for a state to give effective consideration to any of the following in establishing legislative districts:
• “Economic or other sorts of group interests.”
• Geographical considerations.
• A desire “to insure effective representation for sparsely settled areas.”
• “Availability of access of citizens to their representatives.”
• Theories of bicameralism (except those approved by the court).
• “An attempt to balance urban and rural power.”
• The preference of a majority of voters in the state.
So far as presently appears, the only factor which a state may consider, apart from numbers, is political subdivisions. But even “a clearly rational state policy” recognizing this factor is unconstitutional if “population is submerged as the controlling consideration. . . .”
These decisions also cut deeply into the fabric of our federalism. What must follow from them may eventually appear to be the product of state legislatures. Nevertheless, no thinking person can fail to recognize that the aftermath of these cases, however desirable it may be thought in itself, will have been achieved at the cost of a radical alteration in the relationship between the States and the Federal Government, more particularly the Federal Judiciary. Only one who has an overbearing impatience with the federal system and its political processes will believe that that cost was not too high, or was inevitable.
Finally, these decisions give support to a current mistaken view of the Constitution and the constitutional function of this court. This view, in a nutshell, is that every major social ill in this country can find its cure in some constitutional “principle,” and that this court should “take the lead” in promoting reform when other branches of government fail to act. The Constitution is not a panacea for every blot upon the public welfare, nor should this court, ordained as a judicial body, be thought of as a general haven for reform movements. The Constitution is an instrument of government, fundamental to which is the premise that in a diffusion of governmental authority lies the greatest promise that this Nation will realize liberty for all its citizens. This court, limited in function in accordance with that premise, does not serve its high purpose when it exceeds its authority, even to satisfy justified impatience with the slow workings of the political process. For when, in the name of constitutional interpretation, the court adds something to the Constitution that was deliberately excluded from it, the court, in reality, substitutes its view of what should be so for the amending process.