ruent or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise."

13

In the second part the Chief Justice discusses Baker v. Carr, 369 U.S. 186 (1962),” Gray v. Sanders, 372 U.S. 368 (1963), and Wesberry v. Sanders, 376 U.S. 1 (1964)." However, he comments that "Gray and Wesberry are of course not dispositive of or directly controlling on our decision in these cases involving State legislative apportionment controversies. Admittedly, those decisions *** were based on different constitutional considerations and were addressed to rather distinct problems." And he describes Baker v. Carr as holding that a claim challenging the constitutionality of the apportionment of seats in a State legislature "presented a justiciable controversy subject to adjudication by Federal courts."

The third part of the legal analysis in the Warren opinion consists of the citations of cases supporting the propositions that "the right to vote is personal ***,” that the impairment of the right to vote "touches a sensitive and important area of human rights", that "the political franchise of voting" is “a fundamental political right", that "the Constitution forbids sophisticated as well as simple-minded modes of discrimination", and that "invidious discrimination based on factors such as race *** or economic status ***" impairs basic constitutional rights. The Chief Justice then follows this part of the analysis by holding that the equal protection clause of the 14th amendment requires both houses of a State legislature to be apportioned on a population basis.

The text of the fourth part of the Warren opinion cites a case in support of the proposition that political subdivisions are "created as convenient agencies for exercising such of the governmental powers of the States as may be entrusted to them."

Finally, in the fifth part the Chief Justice returns to the citation of Baker v. Carr and Wesberry v. Sanders, in spite of his earlier statements distinguishing them.

WHAT THE WARREN OPINION FAILS TO DO

The Warren opinion does not contain any analysis of the 14th amendment or the equal protection clause itself, or any reference to the legislative history of the 14th amendment or to any contemporaneous statement of its meaning. Justee Harlan commented on this omission in the introduction to his dissent:

"Had the Court paused to probe more deeply into the matter, it would have found that the equal protection clause was never intended to inhibit the States in choosing any democratic method they pleased for the apportionment of their egislatures. This is shown by the language of the 14th amendment taken as a whole, by the understanding of those who proposed and ratified it, and by the poitical practices of the States at the time the amendment was adopted. It is confirmed by numerous State and congressional actions since the adoption of the 14th amendment, and by the common understanding of the amendment as evidenced by subsequent constitutional amendments and the decisions of this Court before Baker v. Carr, supra, made an abrupt break with the past in 1962.15 Justice Harlan followed this with 17 pages of opinion, accompanied by 7 pages of appendix, containing an analysis of the 14th amendment and statements riade by the authors and supporters of the amendment during the congressional debates concerning the purpose and meaning of the amendment.

Justice Stewart, in his dissenting opinion in the Colorado and New York cases in which Justice Clark joined, referred to "the excellent analysis of the

"Justice Stewart comments: "It has been the broad consensus of the State and Federal arts which, since Baker v. Carr, have been faced with the basic question involved in these cases, that the rule which the Court announces today has no basis in the Constitution and no root in reason." 377 U.S. 746 n. 9.

Justice Harlan comments: "Before proceeding to my argument it should be observed that nothing done in Baker v. Carr or in the two cases that followed in its wake, Gray v. Sinders and Wesberry v. Sanders, from which the Court quotes at some length, forecloses The conclusion which I reach. *** [I]t is evident from the Court's opinion [in Baker v. Carr] that it was concerned all but exclusively with justiciability and gave no serious attention to the question whether the equal protection clause touches State legislative apportionments." 377 U.S. at 592, with emphasis added.

Justice Stewart comments: "The rule of Gray v. Sanders, 372 U.S. 368 is, therefore, Completely without relevance here." 377 U.S. at 744.

Justice Stewart comments: "Consequently, the Court's decision In Wesberry v. Sand***, 376 U.S. 1, throws no light at all on the basic issue now before us." 377 U.S. at 744-745.

Reynolds v. Sims, supra at 590–591.

relevant historical materials contained in Mr. Justice Harlan's dissenting opinion" and said:

"After searching carefully through the Court's opinions in these and their companion cases, I have been able to find but two reasons offered in support of this rule. First, says the Court, it is 'established that the fundamental principle of representative government in this country is one of equal representation for equal numbers of people. * * * With all respect, I think this is not correct, simply as a matter of fact. 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 predominately practiced by the States at the time of the adoption of the 14th amendment, it is not predominately practiced by the States today.' Secondly, says the Court, unless legislative districts are equal in population, voters in the more populous districts will suffer a 'debasement' amounting to a constitutional injury. We are not told how or why. *** I find it im

possible to understand. ✶ ✶ ✶ 16

Thus, Justices Harlan, Clark, and Stewart are critical of the Warren opinion for not answering or even considering the legal argument that the equal protection clause of the 14th amendment is not and was not intended to deal with the problem of the apportionment of State legislatures.

THE CHIEF JUSTICE AND POLITICAL PHILOSOPHY

When the Chief Justice turned his attention to the proper composition of a State legislature as a philosophical question, he reached three conclusions. First, if population is submerged as the controlling factor in the apportionment of a State's legislature, the right of all the State's citizens to cast an effective and adequately weighted vote would be unconstitutionally impaired. Second, this would be true even though a clearly rational State policy of according some legislative representation to the various interests in the State might be appropriate. And third, this right of all citizens would be frustrated unless the "population only" test were applied to both of the houses of a State legislature to prevent the majority will, expressed by the representatives of the majority in one house, from being thwarted by the action of the representatives of a minority in the other house.

In commenting on the exclusion by the Chief Justice of any factor other than population as controlling, Justice Harlan said:

"I know of no principle of logic or practical or theoretical politics, still less any constitutional principle, which establishes all or any of these exclusions. Certain it is that the Court's opinion does not establish them.” "

REASON REQUIRES A REPRESENTATIVE LEGISLATURE

After stating that "What the Court has done is to convert a particular political philosophy into a constitutional rule * * *,” Justice Stewart defines representative government as "a process of accommodating group interests through democratic institutional arrangements ***. Appropriate legislative apportionment, therefore, should ideally be designed to insure effective representation in the State's legislature *** of the various groups and interests making up the electorate." [Italic supplied.]

Using Colorado as an example, he pointed out that the State is not an economically or geographically homogeneous unit. Instead, he said, the State contained four distinct regions, and he noted that the district court had found that the people living in each of these four regions had interests unifying them and differentiating them from those in the other regions. Given these underlying facts," he said, “certainly it was not irrational to conclude that effective representation of the interest of the residents of each of these regions was unlikely to be achieved if the rule of equal population districts were mechanically imposed

With respect to New York, he pointed to the statement of Elihu Root at the New York Constitutional Convention of 1894 that in a State with a dominant urban population centralized at one point it would be appropriate to provide for a reasonable balancing of the political power among all the areas of the State.

16 Lucas V. Forty-Fourth General Assembly of Colorado, supra at 745–746. "Reynolds v. Sims, supra at 623,

Justice Clark, in his opinion in the Colorado case, commented that what the Warren opinion "overlooks is that Colorado, by an overwhelming vote, has likewise [as in the case of the Federal Constitution] written the organization of its legislative body into its constitution, and our dual federalism requires that we give it recognition." Finding that Colorado's arrangement was not arbitrary, but rested on reasonable grounds, he concluded:

"In striking down Colorado's plan of apportionment, the Court, I believe, is exceeding its powers under the equal protection clause; it is invading the valid functioning of the procedures of the States, and thereby commits a grievous error which will do irreparable damage to our Federal-State relationship. I dissent.” Thus, Justices Harlan, Clark, and Stewart emphasized the practical consideration that the rationale of the great compromise has been as useful and effective in constructing workable governments for the States as it has been in constructing the Federal Union. At one point Justice Clark commented: "Now in its 176th year the Federal plan has worked well ***. [M]ost legislation is the product of compromise."

COURT'S RULE RAISES A MAJOR ISSUE

The rejection by the Warren opinion of State legislatures based on such a compromise has raised a major issue, in addition to the narrow issue in the reapportionment cases. The narrow issue was whether the equal protection clause of the 14th amendment expressly or implicitly forbids the States to model their legislatures after the Congress, with one house based on population and the other house on area or other considerations.

The major issue is whether or not, under our form of representative government, the composition of the governing body of a State should reflect the diversities which exist within a State. That issue can be determined only by the people. They cannot overrule the Supreme Court, but they can change the language on which the Supreme Court based its decision by amending the Constitution and thus permitting the Federal analogy to be used by the States. Constitutional amendments to achieve this result were introduced in both Houses of the 88th Congress 18 and there was considerable discussion of their provisions during the various debates on legislation pertaining to the apportionment question. At the beginning of the 89th Congress, proposed amendments were introduced again in both Houses.

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Within 4 days after it was introduced, Senate Joint Resolution 2, sponsored by Senator Everett M. Dirksen of Illinois, had attracted 38 cosponsors. It provides that the right and power to determine the composition of the legislature of a State and the apportionment of its membership shall remain in the people of the State. It then expressly recognizes the principle of the great compromise by providing that nothing in the Constitution shall prohibit the people of a State from apportioning one house of a bicameral legislature on the basis of factors other than population, or from giving reasonable weight to factors other than population in apportioning a unicameral legislature, if, in either case, the apportionment has been submitted to a vote of the people "in accordance with law and the provisions of this Constitution and has been approved by a majority of those voting on that issue."

Under such an amendment the citizens of each State would be free to choose whether or not to adopt the Federal analogy. If the people in three-fourths of the States feel that the citizens of each State should have this choice, they will agree with Justice Stewart, with whom Justice Clark joined, when he said: "It is important to make clear at the outset what these [reapportionment] cases are not about. They have nothing to do with the denial or impairment of any person's right to vote. Nobody's right to vote has been denied. Nobody's right to vote has been restricted. Nobody has been deprived of the right to have his vote counted. *** Secondly, these cases have nothing to do with the "weighting" or "diluting" of votes cast within any electoral unit. * ***

For example, S.J. Res. 185 introduced by Senator Dirksen, for himself and 23 other Senators. H.J. Res. 1055 introduced by Representative McCulloch, similar resolutions introduced by 35 Representatives and the many other joint resolutions introduced in the House and Senate after June 15, 1964, the date of the decision in Reynolds v. Sims.

See, for example, the Senate debate on the Dirksen-Mansfield amendment to the foreign aid bill, H.R. 11380, Aug. 13, 1964, to Sept. 24, 1964, and the House debate on the Tuck bill, Aug. 19, 1964.

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"The question involved in these cases is quite a different one. Simply stated. the question is to what degree, if at all, the equal protection clause of the 14th amendment limits each sovereign State's freedom to establish appropriate ele toral constituencies from which representatives to the State's bicameral legis lative assembly are to be chosen. The Court's answer is an abrupt one, and, I think, woefully wrong." 20

There is a substantial indication that the people do feel this way. By the end of 1964 nearly half of the required number of States had already petitioned the Congress to call a national constitutional convention for the purpose of propes ing this constitutional amendment if the Congress did not propose an amend ment itself. In December, 1964, the 17th Biennial General Assembly of the States adopted a resolution calling for such a constitutional convention. Men who have devoted their lives to urban affairs have warned of the need for this amendment, and congressional support for an amendment has come not on from members representing rural areas but also from those representing the largest urban centers of population. For example, the cosponsors of S.J. Res. 2, introduced this January, come from all parts of the country.

21

The issue at stake, as Justice Stewart clearly pointed out, is not one-man-onevote, but the principle of government representative of the people governed by it. It is the need to preserve that essential basic ingredient of our form of government that has caused the broad-based support throughout the country of a move to preserve the Federal analogy for use by the individual States.

THE REAPPORTION MENT DECISIONS: RETROSPECT AND PROSPECT

(By Robert B. McKay, associate dean and professor of law at New York University School of Law)

(Professor McKay contends that the equal-population principle announced by the Supreme Court in the reapportionment cases is sound constitutional dee trine and that the decisions in those cases are destined for implementation rather than reversal by a constitutional amendment. His analysis of the Court's decisive shows that room has been left for State experimentation, and he points out some of the problems that are yet to be answered.)

By the end of 1964 it already had become a cliche of constitutional law to state that Baker v. Carr, 369 U.Š. 186 (1962), and Reynolds v. Sims, 377 U.S. 524 (1964), had ordained a constitutional revolution in State legislative represetti tion,' and that Wesberry v. Sanders, 376 U.S. 1 (1964), had decreed the necessity for similar, although somewhat less dramatic, changes in congressional distric ing. The short of it is that substantial equality in terms of population was be?' to be the guideline principle for each house of all State legislatures and for al congressional districts within each State. There were, to be sure, refinements of the equal-population principle (as the Supreme Court labeled it), but the qualifications were not many.

With equality thus definitively fixed as the basic standard, inquiry must a be made as to what these decisions portend for the judicial process and for the political process in a representative democracy.

By the middle of the 20th century malapportionment in State legislatures had reached epidemic proportions. Justice Frankfurter in his dissenting opini in Baker v. Carr acknowledged "the gross inequality among legislative electoru units within almost every State ***," but he did not believe that these gree inequalities would yield to judicial correction. His reasons were two: fr he doubted that courts could devise workable standards because of his convictio that courts would shrink "from asserting that in districting at least substantis equality is a constitutional requirement enforceable by courts." Second, be reminded that the Federal courts lack direct enforcement powers and so mic)* be unable to devise workable remedies. "The courts' authority-possesenú

20 Lucas v. Forty-Fourth General Assembly of Colorado, supra, at 744–745.

21 Moses, "Robert Moses Warns Against Mob Rule," Nation's Business, December 14 pp. 100. 102. Senator Frank Lausche, fomer Governor of Ohio: "I was mayor of Cere land. If the city bosses were to get control of the legislature, I would fear it greatit Id., at 96.

1 Companion cases decided at the same time as Reynolds v. Sims were WMCA, 100 ↑ Lomenzo, 377 U.S. 633; Maryland Committee for Fair Representation v. Tawes, 377 D* 656: Davis v. Mann, 377 U.S. 678: Roman v. Sincock, 377 U.S. 695; and Lucas v. Furia Fourth General Assembly of Colorado, 377 U.S. 713.

neither of the purse nor the sword-ultimately rests on sustained public confidence in its moral sanction."

These arguments, which seemed weighty in 1962, were proved surprisingly insubstantial by 1964. The Supreme Court did not shrink from defining equality to mean equality, and it did devise a comprehensible standard which could be applied by courts without examination in each case of the political factors which motivate legislative decisionmaking. The anticipated enforcement difficulties also did not arise. The feared crisis of public confidence did not materialize when the State legislatures and State courts themselves took principal responsibility for compliance with the equal-population principle enunciated by the Supreme Court.

In Baker the Court professed to decide only three things: (1) That Federal courts have jurisdiction of suits challenging State legislative apportionment formulas for alleged violation of the equal-protection clause of the Constitution of the United States; (2) that such suits state justiciable causes of action for which Federal courts may give appropriate relief; and (3) that qualified voters from under-represented districts have standing to raise the issue.

With the advantage of only a reasonable amount of hindsight, it is not difficult to realize now that decision of these issues came perilously close to resolution of the substantive issue of standards as well. Justices Frankfurter and Harlan, dissenting, recognized that Baker was the crucial case. Once the courts penetrated that "political thicket," there was no rational stopping place short of real implementation of the equal-population principle, in both houses of State legislatures. It is difficult, bordering on the impossible, to explain how the 14th amendment can require application of the equal-population principle in one house of a State legislature but not in the other. At least that is true unless one is willing to accept the so-called Federal analogy as a basis for differentiation between the constitutional requirements for representation in the two houses.

FEDERAL ANALOGY JUST ISN'T ANALOGOUS

Proponents of the Federal analogy in justification of State legislative malapportionment had pointed to the U.S. Congress as a model for inequality, with its Senate based on equal representation for each State regardless of population and the house representation closely related to population. However, in Reynolds the Supreme Court rejected the Federal analogy as inapplicable. Chief Justice Warren said that reliance on it was an "after-the-fact rationalization offered in defense of maladjusted State apportionment arrangements."

Certainly, the congressional formula had not been widely copied by the States. In 1964, when the Chief Justice wrote, no more than 10 States could have been described as having a legislative apportionment formula even closely approximating that of the U.S. Congress, and each of those States departed to some extent, usually substantially, from the alleged Federal model.

Even more important are the historical reasons for rejecting the Federal analogy. State representation formulas commonly adhered to the population standard until after 1890 and the later departures from the equal-population principle were ordinarily motivated by considerations of selfish advantage to particular interest groups. To understand how and why this should have occurred in nearly every instance more than a century after the ratification of the Constitution, it is necessary to see why it was that State representation formulas were originally most often based on population in both houses of bicameral State legislatures and why it was that these formulas were later modified or abandoned in many States. The simple truth is that the original constitutions in 36 of the 50 States provided for representation largely in accordance with population in both houses of the legislature. But by 1964 the vast majority of the representation formulas allowed substantial departure from population in one or both houses of the legislature.

During the first century of U.S. history representation in State legislatures throughout the Nation bore a close relationship to population, usually in response to requirements of the State constitutions. But even where the representation formula in the State constitution was to some extent dependent on local political

This phrase comes from Justice Frankfurter's opinion in Colegrove v. Green, 328 U.S. 549 at 556 (1946).

Arizona, Connecticut, Idaho, Montana, Nevada, New Jersey, New Mexico, Rhode Island, South Carolina, and Vermont.

Advisory Commission on Intergovernmental Relations Report on Apportionment of State Legislatures, 10-11, 35, 69 (1962).