Government by Judiciary - Raoul Berger

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mean only one thing—one person–one vote.” 12 The framers, however, made unmistakably plain that control of suffrage was to be left to the States notwithstanding their provision for “equal protection.” Thus Warren fashioned a principle to override the unmistakable will of the framers. In the eyes of Justice Brennan, the historical record is “vague and imprecise”;13 hence he reasons that “Recognition of the principle ‘one man, one vote’ as a constitutional one redeems the promise of self-governance by affirming the essential dignity of every citizen to equal participation in the democratic process.” 14 In their exercise of actual “self-governance,” the people adopted the Fifteenth, Sixteenth, and Twenty-sixth Amendments, thereby adjudging that expansion of federal jurisdiction over suffrage required action by the people themselves, never mind the demands of “dignity.” Brennan’s attachment to “human dignity” led him to pronounce that it is offended by capital punishment, though he acknowledges that neither the majority of the people nor that of the Court share his view.15 For him the clear implication of the due process clauses that life may be taken after a fair trial is of no moment. In the face of the ineluctable facts, the conclusions of Warren and Brennan seem to me perverse.

      Mention of the Fifteenth Amendment recalls John Hart Ely’s assertion that adoption of that Amendment is “extremely damaging . . . to Berger’s general claim of the dominance of ‘Negrophobia.’ ” 16 Instead of testifying to abatement of racial prejudice, the Fifteenth Amendment was a response to shifting political exigencies. The primary goal, William Gillette concluded, was enfranchisement of Negroes “outside the deep South” in order to obtain the necessary swing votes of Negroes in the North. A secondary objective, he found, “was to protect the southern Negro against future disfranchisement,” 17 for it had become apparent that military occupation must come to an end and continued control must rest on Negro voters, who would help perpetuate Republican ascendancy.18 Thaddeus Stevens, leader of the Radicals, therefore began drafting the Amendment “to save the Republican party from defeat.” 19 Senator Oliver Morton of Indiana, who had opposed Negro suffrage, now embraced it “as a political necessity.” 20 With Negro votes the Republicans could hope to stay in power, the primary aim from the very beginning.21 Contrast Ely’s denial of “the dominance of ‘Negrophobia’ ” with the 1869 statement by Senator Henry Wilson, the Massachusetts Radical: “There is not today a square mile in the United States where the advocacy of the equal rights and privileges of those colored men has not been in the past and is not now unpopular.” 22 So much, then, for activist denials that suffrage was excluded from the Fourteenth Amendment.

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       Reapportionment

      BAKER v. Carr (1962), the unprecedented reapportionment decision, said Paul Kauper, opened a “new chapter of judicial adventurism.” 1 When the issue was once again presented in Reynolds v. Sims, Justice Harlan wrote a dissent that to my mind is irrefutable. The majority of the Court made no pretense of meeting his historical demonstration; it remained for William Van Alstyne to essay a rebuttal. Harlan’s reliance on the legislative history to establish the “original understanding,” Van Alstyne writes, pertains solely to “exclusive state power over suffrage qualifications” and has no bearing on “the separate issue of malapportionment”; “there was almost no mention of the subject.” 2 That fact alone gives one pause: how can a revolution in Northern apportionment be based on nonmention?

      The dominant purpose of the 39th Congress was to maintain Republican hegemony by reducing Southern representation; and only secondarily did they think to secure the “person and property” of the Negro from oppression.3 There were repeated disclaimers of any intention to interfere with State sovereignty beyond those objectives. Moreover, while Negro suffrage was predominantly a Southern problem, reapportionment would invade long-established State practices with respect to white voters in the North.4 But Van Alstyne argues that to read malapportionment in the equal protection clause “is to say only that among the enfranchised [white] elite,” qualified by the State to vote, “no invidious distinction shall be permitted. The States may be as capricious as they please in withholding the ballot but not in perpetuating elites within the elite.” 5 That is a tremendous “only.” Republicans who shrank from interfering with State control of Negro suffrage in the South would scarcely have dared to impose on the North a radical reconstruction of white apportionment patterns.6 Certainly there was no disclosure that such intrusion was contemplated;7 there is in fact striking evidence that malapportionment was an accepted practice. Speaking with respect to reduced representation, Blaine of Maine said,

      if you cut off the blacks from being enumerated in the basis of representation in the southern States the white population of those States will immediately distribute Representatives within their own territory on the basis of white population. Therefore the most densely populated negro districts will not be allowed to offset the most densely populated white districts . . . Do you suppose that the upland districts of Georgia and South Carolina, inhabited largely by whites, will, in the event of adoption of this amendment, allow the distribution of Representatives to be made on the basis of the whole population? By no means. They will at once insist on the white basis within the State.8

      Not a hint that this would be unlawful, but, rather, clear recognition that States were free to apportion representation to suit themselves. Although, as Van Alstyne notices, this would leave “areas populated by non-voters without representation (and not merely without a vote in the choice of ‘their’ representatives),” 9 Bingham replied, “no possible amendment . . . will answer the purpose unless it is followed by further legislation.” 10 Bingham thus confirms Blaine’s recital of the plenary State power over apportionment and implies that the “representation” (§2) proposal was not designed to meet this situation. Van Alstyne’s comment that “Blaine’s remarks were directed only to the apportionment of congressional rather than state representation” implausibly suggests that the States would be readier to surrender control over their own internal patterns—a suggestion that is incompatible with the pervasive attachment to State sovereignty.

      Blaine’s remarks did not reflect a fleeting improvisation, but responded to established practice. Earlier he had stated: “As an abstract proposition no one will deny that population is the true basis of representation; for women, children and other nonvoting classes may have as vital an interest in the legislation . . . as those who actually cast the ballot.” But, he noted, recognizing existing practice, as had Federalist No. 54 and James Wilson long before,11 “the ratio of voters to population differs very widely in different sections, from a minimum of nineteen per cent to a maximum of fifty-eight per cent.” 12 Even that uncompromising abolitionist Charles Sumner was reconciled to such practices because they reflected “custom and popular faith,” and could not be changed “unless supported by the permanent feelings and conditions of the people.” 13 Then, too, in the congressional debate of June 1868 (that is, prior to ratification of the Fourteenth Amendment), on the readmission of the rebel States, Farnsworth pointed out that the Florida apportionment provision gave “to the sparsely populated portions of the State the control of the Legislature.” But Ben Butler responded that the Senate Judiciary Committee “have found the [Florida] constitution republican and proper,” as did the Senate, the House Committee on Reconstruction,14 and the House itself, thus reaffirming that such malapportionment did not violate the guarantee of a “republican form of government,” nor the equal protection clause which was the work of Butler and his fellows. The Blaine, Sumner, and Butler statements constitute hard evidence which is not overcome by mere speculation.15 Since, moreover, most of the States were malapportioned, it is a strained assumption that by ratification they surrendered a right they had excercised from the outset, and of which surrender they were totally unapprised.16

      When Van

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