By 1954, when Brown came up for decision, it had been apparent for some time that segregation rarely if ever produced equality. Quite aside from any question of psychology, the physical facilities provided for blacks were not as good as those provided for whites. That had been demonstrated in a long series of cases. The Supreme Court was faced with a situation in which the courts would have to go on forever entertaining litigation about primary schools, secondary schools, colleges, washrooms, golf courses, swimming pools, drinking fountains, and the endless variety of facilities that were segregated, or else the separate-but-equal doctrine would have to be abandoned. Endless litigation, aside from the burden on the courts, also would never produce the equality the Constitution promised. The Court’s realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the text.
Had the Brown opinion been written that way, its result would have clearly been rooted in the original understanding, and its legitimacy would have been enhanced for those troubled by the way in which the Court arrived at a moral result without demonstrating its mooring in the historic Constitution. There might have been an even more important benefit. The Court might not have been encouraged to embark on more adventures in policymaking, which is what it thought it had done in Brown, and academic constitutional lawyers might not have gone on to construct the apparently endless set of theories that not only attempt to justify Brown on grounds other than the original understanding but, in order to do so, advance arguments that necessarily justify departure from the historic Constitution in general. Perhaps constitutional theory would be in a far happier state today if Brown had been written, as it could have been, in terms of the original understanding.
But not all the Court’s segregation decisions could have been so rooted. At the same time it decided Brown, the Court decided a companion case, Boiling v. Sharpe,27 in which plaintiffs challenged the school segregation laws of the District of Columbia. That posed a problem since the equal protection clause, under which Brown had been decided, applied only to the states; no similar clause applied to the federal government, which governed the District of Columbia. Had the Court been guided by the Constitution, it would have had to rule that it had no power to strike down the District’s laws. Instead, it seized upon the due process clause of the fifth amendment, which does apply to the federal government, and announced that this due process clause included the same equal protection of the laws concept as the equal protection clause of the fourteenth amendment. This rested on no precedent or history. In fact, history compels the opposite conclusion.28 The framers of the fourteenth amendment adopted the due process clause of the fifth amendment but thought it necessary to add the equal protection clause, obviously understanding that due process, the requirement of fair procedures, did not include the requirement of equal protection in the substance of state laws.
Bolling, then, was a clear rewriting of the Constitution by the Warren Court. Bolling, however much one likes the result, was a substantive due process decision in the same vein as Dred Scott and Lochner. The only justification offered in the opinion was that it would be unthinkable that the states should be forbidden to segregate and the federal government allowed to. Yes, it would be unthinkable, as a matter of morality and of politics. Most certainly, Congress would not and could not have permitted that ugly anomaly to persist, and would have had to repeal the District’s segregation statutes. But there is no way to justify the Warren Court’s revision of the Constitution to accomplish its reforms. This was not a revision for that case only, as some lawless decisions are. Lawyers and judges now regularly attack and scrutinize federal legislation under the Court-invented “equal protection component of the due process clause.”29 Ironically, given the motives for this innovation, the Court’s fifth amendment equal protection clause is the main basis for attacking federal legislation compelling affirmative action or reverse racial discrimination. Without Bolling’s invention, it is not easy to think of how a constitutional challenge to such laws could be mounted. The Court made it abundantly clear that it was not applying the Constitution to controversies involving race. Instead, it was endeavoring to deal with what it conceived to be the country’s racial problems. This was not law but social engineering from the bench.
One Person, One Vote: The Restructuring of State Governments
The Warren Court’s philosophical thrust was, as I have mentioned, egalitarian and redistributionist. Sometimes, as in Brown, its results could have been reached on the historic principles of the Constitution, but quite often they could not; any correspondence between the original understanding and the Court’s rulings was often accidental. There is no better example of the Court’s egalitarianism and its disregard for the Constitution in whose name it spoke than the legislative reapportionment cases, which created the principle of one person, one vote.
It may sound obvious that every American’s vote should have the same weight. The principle, stated in the abstract, sounds admirable. But it is neither obvious nor admirable when it is forced upon people who have chosen democratically to arrange their state governments in part upon a different principle. During the campaign against my confirmation, the charge was repeatedly made that I opposed the rule of one person, one vote. A number of senators gave as a reason for voting against me that I had criticized that principle, which was rather curious, since the senators, being from states with very different numbers of people, do not represent even approximately equally weighted votes. The senators from California represent more than 26 million people; those from Wyoming about 550,000. That is the very situation the Warren Court found intolerable in state senates. It could do nothing about the U.S. Senate since that body’s departure from the one person, one vote principle is deliberately written into the Constitution. I did and do oppose the principle, as a constitutional rule. What those who purported to be horrified at that position neglected to mention is that Americans could always base their state governments on one person, one vote if they chose to do so. No law prevented that. No one was coerced to arrange government on any other theory. But the people of most states chose to structure their state governments on the same model as the federal government, in which representation in one house is based on population and in the other, the Senate, upon political units, though their populations differ. One person, one vote has never been the American practice, and it is certainly not compelled by political theory. Worse, it is not supported by the Constitution and is not, and cannot be, implemented consistently.
The story began with a case, Baker v. Carr,30 coming out of Tennessee. That state’s constitution allocated representation in the legislature on the basis of population, but the legislature had not been reapportioned since 1901. Since then, major population growth and shifts had occurred, so that a distinct minority of the citizens of Tennessee elected a majority of the state legislature. As one might expect, the legislative majority did not care to realign districts to represent the current distribution of the population, because reapportionment would endanger some of their seats. A majority of Tennessee’s voters were being prevented from choosing the structure of representation they wanted. Plaintiff voters sued for a court-ordered reapportionment, lost, and appealed to the Supreme Court.
There is no doubt in my mind, though many commentators whom I respect disagree, that plaintiffs deserved to win. The crucial question was the constitutional theory on which they won, because that would determine what the Court ordered as a lawful method of a
pportionment. Since a majority of Tennessee voters could not govern, they were denied representative government. The most obviously relevant clause of the Constitution was article IV, section 4, which states, in part, “The United States shall guarantee to every State in this Union a Republican Form of Government….”31 More than a hundred years ago, the Court held that it could not apply that clause in a dispute about which of two rival groups was the lawful government of Rhode Island. Since then, for no very good reason, the Court has held that it may not enforce the clause under any circumstances. Baker v. Carr was a case in which the guarantee clause should have been applied, precisely because a situation in which the majority is systematically prevented from governing is not what the Founders meant by a republican form of government. Use of that clause would have resulted in an order that a majority of the state’s voters be permitted to reapportion their legislature, whether by referendum, convention, or some other mechanism. The Court would not tell Tennessee’s voters what system of representation they were required to “choose.”*
The Warren Court, however, had something more revolutionary in mind and signaled the fact by saying that the standards of the equal protection clause should be applied when the case returned to the lower court. Equal protection is not a flexible standard: equality is required or it isn’t. The choice of that clause made the ultimate conclusion inevitable. In Reynolds v. Sims,32 the answer came: both houses of every state legislature had to be apportioned on a population basis so that, so far as possible, every vote had equal weight. At the time, and for years previously, bicameral American state legislatures usually had a house corresponding to the United States Senate, each county or similar political unit within the state having equal representation in the state senate. Representation in the other house was typically arranged on a population basis. Alabama, the state involved in Reynolds v. Sims, contended, not surprisingly, that the state legislature was constructed like Congress and therefore could hardly be unconstitutional. Chief Justice Warren’s opinion found “the federal analogy inapposite and irrelevant,” because the federal system of representation was “one conceived out of compromise and concession indispensable to the establishment of our federal republic.” No such compromises had been necessary to form the states. This response effectively said that the composition of the United States Senate was illegitimate as a matter of political morality but was frozen by the compromise made to protect the smaller states at the Constitutional Convention. The notion that states might similarly want to provide representation for people in certain localities, perhaps because they had distinctive economic interests or social views that might be overlooked in a purely majoritarian legislature, was impatiently brushed aside. “Citizens, not history or economic interests, cast votes…. [P]eople, not land or trees or pastures, vote.” What those observations had to do with giving some interests greater weight in one house of the legislature was not explained.
So determined was the Court that in a companion case to Reynolds v. Sims, Lucas v. Forty-Fourth General Assembly,33 the majority held unconstitutional a Colorado apportionment that had recently been overwhelmingly approved by the state’s voters in a referendum, including majorities in every political subdivision of the state. Justice Stewart’s dissent destroyed the majority’s rationale that “ ‘the fundamental principle of representative government in this country is one of equal representation for equal numbers of people.’ ”34 Stewart, quoting Frankfurter’s dissent in Baker v. Carr, said, “It has been unanswerably demonstrated before now that this ‘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.’ ” The Warren majority’s new constitutional doctrine was supported by nothing. As Stewart pointed out, “The very fact of geographic districting, the constitutional validity of which the Court does not question, carries with it an acceptance of the idea of legislative representation of regional needs and interests.” If the goal was solely equally weighted votes, he said, “I do not understand why the Court’s constitutional rule does not require the abolition of districts and the holding of all elections at large.” He might have added that the rule should call into question other devices, such as the legislative committee system, the filibuster, and the requirement on some issues of two-thirds majorities, all of which give some representatives, and hence those whom they represent, more weight in determining outcomes than others.
Madison’s writing on the republican form of government specified by the guarantee clause suggests that state governments, which were structured as representative democracies, could take many forms, so long as those forms do not become “aristocratic or monarchical.” That is not easily translated into a rigid requirement of equal weight for every vote. It translates far more readily into Justice Stewart’s position that the apportionment, or system of representation, chosen need only be rational and “must be such as not to permit the systematic frustration of the will of a majority of the electorate of the State.”
Few people understand how court-ordered reapportionment works. In 1972, a three-judge district court struck down the reapportionment plan devised by the Connecticut legislature. The chief judge telephoned to ask if I would act as a 1pecial master for the court to draw a new plan. I replied that had written critically of one-person, one-vote, had indeed referred to the doctrine as a “fiasco,” but would apply the law if the court wished. Connecticut politicians were not pleased to learn that a bearded Yale law professor was going to remake the legislature. Yale professors, with some reason, were regarded as outlanders. When I met in Hartford with leaders of the Senate and General Assembly one of them pointed to a map and said sarcastically, “That is Connecticut, professor.” I looked thoughtfully at the map for a moment and replied, “For now.”
Experts in reapportioning by computer began calling. One offered to do the job, staying within the court’s guideline of a 1 percent deviation in the population of all electoral districts, and assured me that he could still gerrymander along any lines I wanted, racial, ethnic, religious, political, or other. I declined all offers, hired two graduate students, got the census tracts for the state, and set to work creating electoral districts with no criterion other than population equality. The operation was highly arbitrary. For one thing, the census tracts showed population but not voting-age population or actual voters. These vary a good deal from area to area, so that it was impossible to achieve one person, one vote, even if the census numbers of people had been very accurate, which they were not. For another, given the merciless requirement of a 1 percent deviation per district, the disparities in population between census tracts, the inability to break the census tracts down further, and very uneven population concentrations across the state, the shape and size of electoral districts was determined by the corner of the state where we began work. Toward the end it looked as if I would have to ask the court to order out the Governor’s Guard to annex a piece of Massachusetts to make the numbers work. We finally managed to submit a plan that had only a few districts with slightly more than a 1 percent deviation. The rigors of arithmetic and the inadequacies of the materials we had to work with meant that the new districts utterly ignored geographical and demographic facts. Small towns were split into two districts, people on opposite sides of rivers were lumped into single districts. There was no help for it, but editorial reaction around the state was often furious. One editorial was headed “Bork’s Fiasco,” which seemed a little hard since I had labeled the one person, one vote doctrine a fiasco to begin with.
What worried me was that, since we had redistricted entirely by the numbers, I had no idea of the political impact of the plan. Since I was known as a conservative, and that label brings with it a lot of erroneous assumptions in a liberal academic community, I could only hope that the plan would not turn out greatly to favor Republicans or
to disadvantage minority groups. When I went to Hartford for the court hearing I was told that a particular restaurant was good for lunch but was not informed that it was also a Democratic Party hangout. I had just lowered a spoon into the soup when a man at another table rose and came over. “Professor, that is a fine reapportionment. It shows great integrity. My name is John Bailey.” John Bailey was then Chairman of the Democratic National Committee, and that was how I found out what my plan did. It was no surprise, after that, when the Republican Party’s lawyer went after me as I presented the plan to the court at that afternoon’s hearing. He seemed determined to get me to admit that my plan had political consequences and mildly disconcerted when I freely admitted it every time he raised the point. Any districting produces political results. How population groups are divided or combined affects the balance in the legislature. The only virtue I could claim was that the political effects of my plan were produced mindlessly rather than intentionally. The court accepted the plan in its entirety. It never went into effect, however, since the Supreme Court, now headed by Chief Justice Warren Burger, relaxed the arithmetical rigor of the Warren Court’s rule and held that the Connecticut legislature’s original plan was acceptable.35 That was just as well.
The experience taught me several things. One was that the one person, one vote doctrine, aside from the dispositive objections raised by Justice Stewart, does not result in equality of representation. Another was that the doctrine in no way reduces gerrymandering, which means some persons’ votes are deliberately submerged and made ineffective. Finally, the Court’s deformation of the Constitution probably succumbed to the law of unintended consequences. It is said that the Warren majority created its constitutional rule in order to increase the representation of cities, particularly inner cities. Earl Warren is reported to have said that these cases were the greatest accomplishment of his Chief Justiceship.36 But the rule’s actual result, apparently, has been to increase the influence of the suburbs. If so, the one man, one vote doctrine was not only illegitimate constitutional law but a political failure as well.
The Tempting of America Page 12