BAKER ET AL. v.
CARR ET AL.
369
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This civil action was brought
under 42
n1 Public Acts of Tennessee, c. 122 (1901), now Tenn.
Code Ann. § § 3-101 to 3-107. The full text of the 1901 Act as amended
appears in an Appendix to this opinion, post, p. 237.
n2 The three-judge court was convened pursuant to the
order of a single district judge, who, after he had reviewed certain decisions
of this Court and found them distinguishable in features "that may
ultimately prove to be significant," held that the complaint was not so
obviously without merit that he would be justified in refusing to convene a
three-judge court. 175 F.Supp. 649, 652.
n3 We heard argument first at the 1960 Term and again
at this Term when the case was set over for reargument. 366
The General Assembly of Tennessee
consists of the Senate with 33 members and the House of Representatives with 99
members. The Tennessee Constitution
provides in Art. II as follows:
"Sec. 3.
Legislative authority -- Term of office. -- The Legislative authority of
this State shall be vested in a General Assembly, which shall consist of a
Senate and House of Representatives, both dependent on the people; who shall
hold their offices for two years from the day of the general election.
"Sec. 4. Census. -- An enumeration of the qualified
voters, and an apportionment of the Representatives in the General Assembly,
shall be made in the year one thousand eight hundred and seventy-one, and
within every subsequent term of ten years.
"Sec. 5. Apportionment of representatives. -- The
number of Representatives shall, at the several
[*189] periods of making the
enumeration, be apportioned among the several counties or districts, according
to the number of qualified voters in each; and shall not exceed seventy-five,
until the population of the State shall be one million and a half, and shall
never exceed ninety-nine; Provided, that any county having two-thirds of the
ratio shall be entitled to one member.
"Sec. 6. Apportionment of senators. -- The number of
Senators shall, at the several periods of making the enumeration, be
apportioned among the several counties or districts according to the number of qualified
electors in each, and shall [**695] not exceed one-third the number of
representatives. In apportioning the
Senators among the different counties, the fraction that may be lost by any
county or counties, in the apportionment of members to the House of
Representatives, shall be made up to such county or counties in the Senate, as
near as may be practicable. When a
district is composed of two or more counties, they shall be adjoining; and no
county shall be divided in forming a district."
Thus,
n4 A county having less than, but at least two-thirds
of, the population required to choose a Representative is allocated one
Representative. See also Tenn. Const.,
Art. II, § 6. A common and much more substantial departure
from the number-of-voters or total-population standard is the guaranty of at
least one seat to each county. See, e.
g.,
While the Tennessee Constitution speaks of the number
of "qualified voters," the exhibits attached to the complaint use
figures based on the number of persons 21 years of age and over. This basis seems to have been employed by the
General Assembly in apportioning legislative seats from the outset. The 1870 statute providing for the first
enumeration, Acts of 1870 (1st Sess.), c. 107, directed the courts of the
several counties to select a Commissioner to enumerate "all the male
inhabitants of their respective counties, who are twenty-one years of age and
upward, who shall be resident citizens of their counties on the first day of
January, 1871 . . . ." Reports compiled in the several counties on this
basis were submitted to the General Assembly by the Secretary of State and were
used in the first apportionment. Appendix to
n5 Acts of 1871 (1st Sess.), c. 146.
n6 Acts of 1870 (1st Sess.), c. 107.
n7 The statute authorizing the enumeration was Acts of
1881 (1st Sess.), c. 124. The
enumeration commissioners in the counties were allowed "access to the U.S.
Census Reports of the enumeration of 1880, on file in the offices of the County
Court Clerks of the State, and a reference to said reports by said
commissioners shall be legitimate as an auxiliary in the enumeration required .
. . ." Ibid., § 4.
The United States Census reported 330,305 male
citizens 21 and upward in
The General Assembly was enlarged in accordance with
the constitutional mandate since the State's population had passed
1,500,000. Acts of 1881 (1st Extra.
Sess.), c. 5; and see, id., S. J. Res. No. III; see also Tenth Census of
the
n8 Acts of 1891, c. 22; Acts of 1891 (Extra. Sess.),
c. 10. Reference to United States Census
figures was allowed just as in 1881, see supra, n. 7. The United States Census reported 402,476
males 21 and over in
n9 Acts of 1901, S. J. Res. No. 35; Acts of 1901, c.
122. The Joint Resolution said:
"The Federal census of 1900 has been very recently taken and by reference
to said Federal census an accurate enumeration of the qualified voters of the
respective counties of the State of Tennessee can be ascertained and thereby
save the expense of an actual enumeration . . . ."
n10 For the history of legislative apportionment in
Tennessee, including attempts made since 1901, see Tenn. S. J., 1959, 909-930;
and "A Documented Survey of Legislative Apportionment in Tennessee,
1870-1957," which is attached as exhibit 2 to the intervening complaint of
Mayor West of Nashville, both prepared by the Tennessee State Historian, Dr.
Robert H. White. Examples of preliminary
steps are: In 1911, the Senate called upon the Redistricting Committee to make
an enumeration of qualified voters and to use the Federal Census of 1910 as the
basis. Acts of 1911, S. J. Res. No. 60,
p. 315. Similarly, in 1961, the Senate
called for appointment of a select committee to make an enumeration of
qualified voters. Acts of 1961, S. J. Res. No. 47. In 1955, the Senate called for a study of
reapportionment. Tenn. S. J., 1955, 224; but see id., at 1403. Similarly, in 1961, the House directed the
State Legislative Council to study methods of reapportionment. Acts of 1961, H.
J. Res. No. 65.
[*192]
Between 1901 and 1961, Tennessee
[***671] has experienced
substantial growth and redistribution of her population. In 1901 the population was 2,020,616, of whom
487,380 were eligible to vote. n11 The 1960 Federal Census reports the State's
population at 3,567,089, of whom 2,092,891 are eligible to vote. n12 The
relative standings of the counties in terms of qualified voters have changed
significantly. It is primarily the
continued application of the 1901 Apportionment Act to this shifted and
enlarged voting population which gives rise to the present controversy.
n11 Twelfth Census of the United States, 1900,
Population (Part 1) 39 (1901); (Part 2) 202 (1902).
n12 United States Census of Population: 1960, General
Population Characteristics -- Tennessee, Table 16 (1961).
Indeed, the complaint alleges that
the 1901 statute, even as of the time of its passage, "made no
apportionment of Representatives and Senators in accordance with the
constitutional formula . . . , but instead arbitrarily and capriciously
apportioned representatives [**697] in the Senate and House without reference . .
. to any logical or reasonable formula whatever." n13 It is further alleged [*193]
that "because of the population changes since 1900, and the failure
of the Legislature to reapportion itself since 1901," the 1901 statute
became "unconstitutional and obsolete." Appellants also argue that,
because of the composition of the legislature effected by the 1901
Apportionment Act, redress in the form of a state constitutional amendment to
change the entire mechanism for reapportioning, or any other change short of
that, is difficult or impossible. n14 The complaint [***672]
concludes that "these plaintiffs
[*194] and others similarly
situated, are denied the equal protection
[**698] of the laws accorded them
by the Fourteenth Amendment to the Constitution of the United States by virtue
of the debasement of their votes." n15 They seek a [*195]
declaration that the 1901 statute is unconstitutional and an injunction
restraining [***673] the appellees from acting to conduct any
further elections under it. They also
pray that unless and until the General Assembly enacts a valid reapportionment,
the District Court should either decree a reapportionment by mathematical
application of the Tennessee constitutional formulae to the most recent Federal
Census figures, or direct the appellees to conduct legislative elections,
primary and general, at large. They also
pray for such other and further relief as may be appropriate.
n13 In the words of one of the intervening complaints,
the apportionment was "wholly arbitrary, . . . and, indeed, based upon no
lawfully pertinent factor whatever."
n14 The appellants claim that no General Assembly
constituted according to the 1901 Act will submit reapportionment proposals
either to the people or to a Constitutional Convention. There is no provision
for popular initiative in Tennessee.
Amendments proposed in the Senate or House must first be approved by a
majority of all members of each House and again by two-thirds of the members in
the General Assembly next chosen. The
proposals are then submitted to the people at the next general election in which
a Governor is to be chosen.
Alternatively, the legislature may submit to the people at any general
election the question of calling a convention to consider specified
proposals. Such as are adopted at a
convention do not, however, become effective unless approved by a majority of
the qualified voters voting separately on each proposed change or amendment at
an election fixed by the convention. Conventions shall not be held oftener than
once in six years. Tenn. Const., Art.
XI, § 3.
Acts of 1951, c. 130, § 3, and
Acts of 1957, c. 340, § 3, provided that
delegates to the 1953 and 1959 conventions were to be chosen from the counties
and floterial districts just as are members of the State House of
Representatives. The General Assembly's
call for a 1953 Constitutional Convention originally contained a provision
"relating to the appointment [sic] of representatives and
senators" but this was excised.
Tenn. H. J., 1951, 784. A
Resolution introduced at the 1959 Constitutional Convention and reported unfavorably
by the Rules Committee of the Convention was as follows:
"By Mr. Chambliss (of Hamilton County),
Resolution No. 12 -- Relative to Convention considering reapportionment, which
is as follows:
"WHEREAS, there is a rumor that this Limited
Convention has been called for the purpose of postponing for six years a
Convention that would make a decision as to reapportionment; and
"WHEREAS, there is pending in the United States
Courts in Tennessee a suit under which parties are seeking, through decree, to
compel reapportionment; and
"WHEREAS, it is said that this Limited
Convention, which was called for limited consideration, is yet a Constitutional
Convention within the language of the Constitution as to Constitutional
Conventions, forbidding frequent Conventions in the last sentence of Article
Eleven, Section 3, second paragraph, more often than each six years, to-wit:
"'No such Convention shall be held oftener than
once in six years.'
"NOW, THEREFORE, BE IT RESOLVED, That it is the
consensus of opinion of the members of this Convention that since this is a
Limited Convention as hereinbefore set forth another Convention could be had if
it did not deal with the matters submitted to this Limited Convention.
"BE IT FURTHER RESOLVED, That it is the consensus
of opinion of this Convention that a Convention should be called by the General
Assembly for the purpose of considering reapportionment in order that a
possibility of Court enforcement being forced on the Sovereign State of
Tennessee by the Courts of the National Government may be avoided.
"BE IT FURTHER RESOLVED, That this Convention be
adjourned for two years to meet again at the same time set forth in the statute
providing for this Convention, and that it is the consensus of opinion of this
body that it is within the power of the next General Assembly of Tennessee to
broaden the powers of this Convention and to authorize and empower this
Convention to consider a proper amendment to the Constitution that will
provide, when submitted to the electorate, a method of reapportionment."
Tenn. Constitutional Convention of 1959, The Journal and Debates, 35, 278.
n15 It is clear that appellants' federal
constitutional claims rest exclusively on alleged violation of the Fourteenth
Amendment. Their primary claim is that the 1901 statute violates the Equal
Protection Clause of that amendment.
There are allegations invoking the Due Process Clause but from the
argument and the exhibits it appears that the Due Process Clause argument is
directed at certain tax statutes. Insofar
as the claim involves the validity of those statutes under the Due Process
Clause we find it unnecessary to decide its merits. And if the allegations regarding the tax
statutes are designed as the framework for proofs as to the effects of the allegedly
discriminatory apportionment, we need not rely upon them to support our holding
that the complaint states a federal constitutional claim of violation of the
Equal Protection Clause. Whether, when the issue to be decided is one of the
constitutional adequacy of this particular apportionment, taxation arguments
and exhibits as now presented add anything, or whether they could add anything
however presented, is for the District Court in the first instance to decide.
The complaint, in addition to the claims under the
Federal Constitution, also alleges rights, and the General Assembly's duties,
under the Tennessee Constitution. Since
we hold that appellants have -- if it develops at trial that the facts support
the allegations -- a cognizable federal constitutional cause of action resting
in no degree on rights guaranteed or putatively guaranteed by the Tennessee
Constitution, we do not consider, let alone enforce, rights under a State
Constitution which go further than the protections of the Fourteenth Amendment.
Lastly, we need not assess the legal significance, in reaching our conclusion,
of the statements of the complaint that the apportionment effected today under
the 1901 Act is "contrary to the philosophy of government in the United
States and all Anglo-Saxon jurisprudence . . . ."
I.
THE DISTRICT COURT'S OPINION AND
ORDER OF DISMISSAL.
Because we deal with this case on
appeal from an order of dismissal granted on appellees' motions, precise
identification [*196] of the issues presently confronting us
demands clear exposition of the grounds upon which the District Court rested in
dismissing the case. The dismissal order
recited that the court sustained the appellees' grounds "(1) that the
Court lacks jurisdiction of the subject matter, and (2) that the complaint
fails to state a claim upon which relief can be granted . . . ."
In the setting of a case such as
this, the recited grounds embrace two possible reasons for dismissal:
First: That the facts and injury alleged, the legal bases
invoked as creating the rights and duties relied upon, and the relief sought,
fail to come within that language of Article III of the Constitution and of the
jurisdictional statutes which define those matters concerning which United
States District Courts are empowered to act;
Second: That, although the matter is cognizable and facts
are alleged which establish infringement of appellants' rights as a result of
state legislative action departing from a federal constitutional [**699]
standard, the court will not proceed because the matter is considered
unsuited to judicial inquiry or adjustment.
We treat the first ground of
dismissal as "lack of jurisdiction of the subject matter." The second
we consider to result in a failure to state a justiciable cause of action.
The District Court's dismissal
order recited that it was issued in conformity with the court's per curiam
opinion. The opinion reveals that the
court rested its dismissal upon lack of subject-matter jurisdiction and lack of
a justiciable cause of action without attempting to distinguish between these
grounds. After noting that the
plaintiffs challenged the existing legislative apportionment in Tennessee under
the Due Process and Equal Protection Clauses, and summarizing the supporting
allegations and the relief requested, the court stated that
"The action is presently
before the Court upon the defendants' motion to dismiss predicated upon
three [*197] grounds: first, that the Court lacks
jurisdiction of the subject matter; second, that the complaints fail to state a
claim upon which relief can be granted; and third, that indispensable party
defendants are not before the Court." 179 F. Supp., at 826.
The court proceeded to explain its
action as turning on the case's presenting a "question of the distribution
of political strength for legislative purposes." For,
"From a review of [numerous Supreme Court] . . . decisions there
can be no doubt that the federal rule, as enunciated and applied by the Supreme
Court, is that the federal [***674] courts, whether from a lack of jurisdiction
or from the inappropriateness of the subject matter for judicial consideration,
will not intervene in cases of this type to compel legislative
reapportionment." 179 F.Supp., at 826.
The court went on to express doubts as to the feasibility of the
various possible remedies sought by the plaintiffs. 179 F.Supp., at 827-828. Then it made clear
that its dismissal reflected a view not of doubt that violation of
constitutional rights was alleged, but of a court's impotence to correct that
violation:
"With the plaintiffs' argument that the legislature of Tennessee
is guilty of a clear violation of the state constitution and of the rights of
the plaintiffs the Court entirely agrees.
It also agrees that the evil is a serious one which should be corrected
without further delay. But even so the
remedy in this situation clearly does not lie with the courts. It has long been recognized and is accepted
doctrine that there are indeed some rights guaranteed by the Constitution for
the violation of which the courts cannot give redress." 179 F.Supp., at
828.
[***HR1A] [***HR2A]
[***HR3A] [***HR4] In light of the District Court's treatment of
the case, we hold today only (a) that the court possessed jurisdiction of the
subject matter; (b) that a justiciable cause of
[*198] action is stated upon
which appellants would be entitled to appropriate relief; and (c) because
appellees raise the issue before this Court, that the appellants have standing
to challenge the Tennessee apportionment statutes. n16 Beyond noting that we
have no cause at this stage to doubt the District Court will be able to fashion
relief if violations of constitutional rights are found, it is improper now to
consider what remedy would be most appropriate if appellants prevail at the
trial.
n16 We need not reach the question of indispensable
parties because the District Court has not yet decided it.
[**700]
II.
JURISDICTION OF THE SUBJECT
MATTER.
[***HR5] [***HR6]
The District Court was uncertain whether our cases withholding federal
judicial relief rested upon a lack of federal jurisdiction or upon the
inappropriateness of the subject matter for judicial consideration -- what we
have designated "nonjusticiability." The distinction between the two
grounds is significant. In the instance
of nonjusticiability, consideration of
the cause is not wholly and immediately foreclosed; rather, the Court's inquiry
necessarily proceeds to the point of deciding whether the duty asserted can be
judicially identified and its breach judicially determined, and whether
protection for the right asserted can be judicially molded. In the instance of lack of jurisdiction the
cause either does not "arise under" the Federal Constitution, laws or
treaties (or fall within one of the other enumerated categories of Art. III, § 2), or is not a "case or
controversy" within the meaning of that section; or the cause is not one
described by any jurisdictional statute.
Our conclusion, see pp. 208-237, infra, that this cause presents
no nonjusticiable "political question" settles the only possible
doubt that it is a case or controversy.
Under the present heading of "Jurisdiction [*199]
of the Subject Matter" we hold only that the matter set forth in
the [***675] complaint does arise under the Constitution
and is within 28 U. S. C. § 1343.
[***HR7] [***HR8]
Article III, § 2, of the Federal
Constitution provides that "The judicial Power shall extend to all Cases,
in Law and Equity, arising under this Constitution, the Laws of the United
States, and Treaties made, or which shall be made, under their Authority . . .
." It is clear that the cause of action is one which "arises
under" the Federal Constitution.
The complaint alleges that the 1901 statute effects an apportionment
that deprives the appellants of the equal protection of the laws in violation
of the Fourteenth Amendment. Dismissal of the complaint upon the ground of lack
of jurisdiction of the subject matter would, therefore, be justified only if
that claim were "so attenuated and unsubstantial as to be absolutely
devoid of merit," Newburyport Water Co. v. Newburyport, 193
U.S. 561, 579, or "frivolous," Bell v. Hood, 327 U.S.
678, 683. n17 That the claim is unsubstantial must be "very plain." Hart
v. Keith Vaudeville Exchange, 262 U.S. 271, 274. Since the District
Court obviously and correctly did not deem the asserted federal constitutional
claim unsubstantial and frivolous, it should not have dismissed the complaint
for want of jurisdiction of the subject matter. And of course no further
consideration of the merits of the claim is relevant to a determination of the court's
jurisdiction of the subject matter. We said in an earlier voting case from
Tennessee: "It is obvious . . . that the court, in dismissing for want of
jurisdiction, was controlled by what it deemed to be the want of merit in the
averments which were made in the complaint as to the violation of the Federal
right. But as the very nature of the
controversy was Federal, and, therefore,
[*200] jurisdiction existed,
whilst the opinion of the court as to the want of merit in the cause of action
might have furnished ground for dismissing for that reason, it afforded no
sufficient ground for deciding that the action was not one arising under the
Constitution and laws of the United States." Swafford v. Templeton,
185 U.S. 487, 493. "For it is well settled that the failure to state a
proper cause of action calls for a judgment on the merits and not for a
dismissal for want of jurisdiction." Bell v. Hood, 327 U.S.
678, 682. [**701] See also Binderup v. Pathe Exchange,
263 U.S. 291, 305-308.
n17 The accuracy of calling even such dismissals
"jurisdictional" was questioned in Bell v. Hood. See 327 U.S., at 683.
[***HR9] Since the complaint plainly sets forth a case
arising under the Constitution, the subject matter is within the federal
judicial power defined in Art. III, § 2,
and so within the power of Congress to assign to the jurisdiction of the
District Courts. Congress has exercised
that power in 28 U. S. C. § 1343 (3):
"The district courts shall
have original jurisdiction of any civil action authorized by law n18 to be
commenced by any person . . . to
[***676] redress the deprivation,
under color of any State law, statute, ordinance, regulation, custom or usage,
of any right, privilege or immunity secured by the Constitution of the United
States . . . ." n19
n18 42 U. S. C. §
1983 provides: "Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory, subjects,
or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other proper proceeding
for redress."
n19 This Court has frequently sustained District Court
jurisdiction under 28 U. S. C. § 1343
(3) or its predecessors to entertain suits to redress deprivations of rights
secured against state infringement by the Equal Protection and Due Process
Clauses of the Fourteenth Amendment. Douglas v. Jeannette, 319
U.S. 157; Stefanelli v. Minard, 342 U.S. 117; cf. Nixon v. Herndon, 273 U.S. 536;
Nixon v. Condon, 286 U.S. 73; Snowden v. Hughes,
321 U.S. 1; Smith v. Allwright, 321 U.S. 649; Monroe v. Pape,
365 U.S. 167; Egan v. Aurora, 365 U.S. 514.
[*201]
An unbroken line of our precedents sustains the federal courts'
jurisdiction of the subject matter of federal constitutional claims of this
nature. The first cases involved the
redistricting of States for the purpose of electing Representatives to the
Federal Congress. When the Ohio Supreme
Court sustained Ohio legislation against an attack for repugnancy to Art. I,
§ 4, of the Federal Constitution, we
affirmed on the merits and expressly refused to dismiss for want of jurisdiction
"In view . . . of the subject-matter of the controversy and the Federal
characteristics which inhere in it . . . ." Ohio ex rel. Davis v. Hildebrant,
241 U.S. 565, 570. When the Minnesota Supreme Court affirmed the dismissal of a
suit to enjoin the Secretary of State of Minnesota from acting under Minnesota
redistricting legislation, we reviewed the constitutional merits of the
legislation and reversed the State Supreme Court. Smiley v. Holm, 285 U.S. 355.
And see companion cases from the New York Court of Appeals and the Missouri
Supreme Court, Koenig v. Flynn, 285 U.S. 375; Carroll v. Becker,
285 U.S. 380. When a three-judge District Court, exercising jurisdiction under
the predecessor of 28 U. S. C. § 1343
(3), permanently enjoined officers of the State of Mississippi from conducting
an election of Representatives under a Mississippi redistricting act, we
reviewed the federal questions on the merits and reversed the District
Court. Wood v. Broom, 287
U.S. 1, reversing 1 F.Supp. 134. A similar decree of a District Court,
exercising jurisdiction under the same statute, concerning a Kentucky
redistricting act, was [*202] reviewed and the decree reversed. Mahan v. Hume, 287 U.S. 575,
reversing 1 F.Supp. 142. n20
n20 Since that case was not brought to the Court until
after the election had been held, the Court cited not only Wood v. Broom,
but also directed dismissal for mootness, citing Brownlow v. Schwartz,
261 U.S. 216.
[**702]
The appellees refer to Colegrove v. Green, 328 U.S. 549,
as authority that the District Court lacked jurisdiction of the subject matter.
Appellees misconceive the holding of that case.
The holding was precisely contrary to their reading of it. Seven members of the Court participated in
the decision. Unlike many other cases in
this field which have assumed without discussion that there was jurisdiction,
all three opinions filed in Colegrove discussed the question. [***677]
Two of the opinions expressing the views of four of the Justices, a
majority, flatly held that there was jurisdiction of the subject matter. MR.
JUSTICE BLACK joined by MR. JUSTICE DOUGLAS and Mr. Justice Murphy stated:
"It is my judgment that the District Court had jurisdiction . . . ,"
citing the predecessor of 28 U. S. C. §
1343 (3), and Bell v. Hood, supra. 328 U.S., at 568. Mr.
Justice Rutledge, writing separately, expressed agreement with this
conclusion. 328 U.S., at 564, 565, n. 2.
Indeed, it is even questionable that the opinion of MR. JUSTICE FRANKFURTER,
joined by Justices Reed and Burton, doubted jurisdiction of the subject matter.
Such doubt would have been inconsistent with the professed willingness to turn
the decision on either the majority or concurring views in Wood v. Broom,
supra. 328 U.S., at 551.
Several subsequent cases similar
to Colegrove have been decided by the Court in summary per curiam
statements. None was dismissed for want
of jurisdiction of the subject matter. Cook v. Fortson, 329 U.S.
675; Turman v. [*203] Duckworth, ibid.; Colegrove v. Barrett,
330 U.S. 804; n21 Tedesco v. Board of Supervisors, 339 U.S. 940; Remmey
v. Smith, 342 U.S. 916; Cox v. Peters, 342 U.S. 936; Anderson
v. Jordan, 343 U.S. 912; Kidd v. McCanless, 352 U.S. 920; Radford
v. Gary, 352 U.S. 991; Hartsfield v. Sloan, 357 U.S. 916; Matthews
v. Handley, 361 U.S. 127. n22
n21 Compare Boeing Aircraft Co. v. King
County, 330 U.S. 803 ("the appeal is dismissed for want of
jurisdiction"). See Coleman
v. Miller, 307 U.S. 433, 440.
n22 Matthews did affirm a judgment that may be
read as a dismissal for want of jurisdiction, 179 F.Supp. 470. However, the
motion to affirm also rested on the ground of failure to state a claim upon
which relief could be granted. Cf. text
following, on MacDougall v. Green. And see text, infra, p. 236.
Two cases decided with opinions
after Colegrove likewise plainly imply that the subject matter of this
suit is within District Court jurisdiction.
In MacDougall v. Green, 335 U.S. 281, the District Court
dismissed for want of jurisdiction, which had been invoked under 28 U. S. C.
§ 1343 (3), a suit to enjoin enforcement
of the requirement that nominees for state-wide elections be supported by a
petition signed by a minimum number of persons from at least 50 of the State's
102 counties. This Court's disagreement
with that action is clear since the Court affirmed the judgment after a review
of the merits and concluded that the particular claim there was without
merit. In South v. Peters,
339 U.S. 276, we affirmed the dismissal of an attack on the Georgia
"county unit" system but founded our action on a ground that plainly
would not [**703] have been reached if the lower court lacked
jurisdiction of the subject matter, which allegedly existed under 28 U. S. C.
§ 1343 (3). The express words of our holding were that
"Federal courts consistently refuse to exercise their equity powers in
cases posing [*204] political issues arising from a state's
geographical distribution of electoral strength among its political
subdivisions." 339 U.S., at 277.
[***678]
[***HR1B] We hold that the District Court has
jurisdiction of the subject matter of the federal constitutional claim asserted
in the complaint.
III.
STANDING.
[***HR10] [***HR11]
[***HR12] A federal court cannot
"pronounce any statute, either of a State or of the United States, void,
because irreconcilable with the Constitution, except as it is called upon to
adjudge the legal rights of litigants in actual controversies." Liverpool
Steamship Co. v. Commissioners of Emigration, 113 U.S. 33, 39. Have
the appellants alleged such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult
constitutional questions? This is the
gist of the question of standing. It is,
of course, a question of federal law.
The complaint was filed by
residents of Davidson, Hamilton, Knox, Montgomery, and Shelby Counties. Each is a person allegedly qualified to vote
for members of the General Assembly representing his county. n23 These
appellants sued "on their own behalf and on behalf of all qualified voters
of their respective counties, and further, on behalf of all voters of the State
of Tennessee who [*205] are similarly situated . . . ." n24 The
appellees are the Tennessee Secretary of State, Attorney General, Coordinator
of Elections, and members of the State Board of Elections; the members of the
State Board are sued in their own right and also as representatives of the
County Election Commissioners whom they appoint. n25
n23 The Mayor of Nashville suing "on behalf of
himself and all residents of the City of Nashville, Davidson County, . .
." and the Cities of Chattanooga (Hamilton County) and Knoxville (Knox
County), each suing on behalf of its residents, were permitted to intervene as
parties plaintiff. Since they press the
same claims as do the initial plaintiffs, we find it unnecessary to decide
whether the intervenors would have standing to maintain this action in their asserted
representative capacities.
n24 The complaint also contains an averment that the
appellants sue "on their own behalf and on behalf of all other voters
in the State of Tennessee." (Emphasis added.) This may be read to assert a
claim that voters in counties allegedly over-represented in the General
Assembly also have standing to complain.
But it is not necessary to decide that question in this case.
n25 The duties of the respective appellees are alleged
to be as follows:
"Defendant, Joe C. Carr, is the duly
elected, qualified and acting Secretary of State of the State of Tennessee,
with his office in Nashville in said State, and as such he is charged with the
duty of furnishing blanks, envelopes and information slips to the County
Election Commissioners, certifying the results of elections and maintaining the
records thereof; and he is further ex officio charged, together with the
Governor and the Attorney General, with the duty of examining the election
returns received from the County Election Commissioners and declaring the
election results, by the applicable provisions of the Tennessee Code Annotated,
and by Chapter 164 of the Acts of 1949, inter alia.
"Defendant, George F. McCanless, is the
duly appointed and acting Attorney General of the State of Tennessee, with his
office in Nashville in said State, and is charged with the duty of advising the
officers of the State upon the law, and is made by Section 23-1107 of the
Tennessee Code Annotated a necessary party defendant in any declaratory judgment
action where the constitutionality of statutes of the State of Tennessee is
attacked, and he is ex-officio charged, together with the Governor and the
Secretary of State, with the duty of declaring the election results, under
Section 2-140 of the Tennessee Code Annotated.
"Defendant, Jerry McDonald, is the duly
appointed Coordinator of Elections in the State of Tennessee, with his office
in Nashville, Tennessee, and as such official, is charged with the duties set
forth in the public law enacted by the 1959 General Assembly of Tennessee
creating said office.
"Defendants, Dr. Sam Coward, James Alexander,
and Hubert Brooks are the duly appointed and qualified members
constituting the State Board of Elections, and as such they are charged with
the duty of appointing the Election Commissioners for all the counties of the
State of Tennessee, the organization and supervision of the biennial elections
as provided by the Statutes of Tennessee, Chapter 9 of Title 2 of the Tennessee
Code Annotated, Sections 2-901, et seq.
"That this action is brought against the
aforenamed defendants in their representative capacities, and that said
Election Commissioners are sued also as representatives of all of the County
Election Commissioners in the State of Tennessee, such persons being so
numerous as to make it impracticable to bring them all before the court; that
there is a common question of law involved, namely, the constitutionality of
Tennessee laws set forth in the Tennessee Code Annotated, Section 3-101 through
Section 3-109, inclusive; that common relief is sought against all members of
said Election Commissions in their official capacities, it being the duties of
the aforesaid County Election Commissioners, within their respective
jurisdictions, to appoint the judges of elections, to maintain the registry of
qualified voters of said County, certify the results of elections held in said
County to the defendants State Board of Elections and Secretary of State, and
of preparing ballots and taking other steps to prepare for and hold elections
in said Counties by virtue of Sections 2-1201, et seq. of Tennessee Code
Annotated, and Section 2-301, et seq. of Tennessee Code Annotated, and Chapter
164 of the Acts of 1949, inter alia."
The question whether the named defendants are sufficient
parties remains open for consideration on remand.
[*206]
[**704]
[***HR3B] We
[***679] hold that the appellants
do have standing to maintain this suit.
Our decisions plainly support this conclusion. Many of the cases have assumed rather than
articulated the premise in deciding the merits of similar claims. n26 And Colegrove
v. Green, supra, squarely held that voters who allege facts showing
disadvantage to themselves as individuals have standing to sue. n27 A
number [*207] of cases decided after Colegrove [***680]
recognized the standing of the voters there involved to bring those
actions. n28
n26 Smiley v. Holm, supra, at 361
("'citizen, elector and taxpayer' of the State"); Koenig v. Flynn,
supra, at 379 ("'citizens and voters' of the State") Wood
v. Broom, supra, at 4 ("citizen of Mississippi, a qualified elector
under its laws, and also qualified to be a candidate for election as
representative in Congress"); cf. Carroll
v. Becker, supra (candidate for office).
n27 Mr. Justice Rutledge was of the view that any
question of standing was settled in Smiley v. Holm, supra; MR.
JUSTICE BLACK stated "that appellants had standing to sue, since the facts
alleged show that they have been injured as individuals." He relied on Coleman
v. Miller, 307 U.S. 433, 438, 467. See 328 U.S. 564, 568.
Commentators have suggested that the following
statement in MR. JUSTICE FRANKFURTER'S opinion might imply a view that
appellants there had no standing: "This is not an action to recover for
damage because of the discriminatory exclusion of a plaintiff from rights enjoyed
by other citizens. The basis for the
suit is not a private wrong, but a wrong suffered by Illinois as a
polity." 328 U.S., at 552. See Jaffe, Standing to Secure Judicial Review:
Public Actions, 74 Harv. L. Rev. 1265, 1298 (1961); Lewis, Legislative Apportionment
and the Federal Courts, 71 Harv. L. Rev. 1057, 1081-1083 (1958). But since the
opinion goes on to consider the merits, it seems that this statement was not
intended to intimate any view that the plaintiffs in that action lacked
standing. Nor do the cases cited
immediately after the above quotation deal with standing. See especially Lane v. Wilson,
307 U.S. 268, 272-273.
n28 MacDougall v. Green, supra, at 282
("the 'Progressive Party,' its nominees for United States Senator,
Presidential Electors, and State offices, and several Illinois voters"); South
v. Peters, supra, at 277 ("residents of the most populous county in
the State"); Radford v. Gary, 145 F.Supp. 541, 542
("citizen of Oklahoma and resident and voter in the most populous
county"); Matthews v. Handley, supra ("citizen of the
State"); see also Hawke v. Smith (No. 1), 253 U.S.
221; Leser v. Garnett, 258 U.S. 130; Coleman v. Miller,
307 U.S. 433, 437-446.
[**705]
These appellants seek relief in order to protect or vindicate an
interest of their own, and of those similarly situated. Their constitutional claim is, in substance,
that the 1901 statute constitutes arbitrary and capricious state action,
offensive to the Fourteenth Amendment in its irrational disregard of the
standard of apportionment prescribed by the State's Constitution or of any
standard, effecting a gross disproportion of representation to voting
population. The injury which appellants
assert is that this classification disfavors the voters in the counties in
which they reside, placing them in a position of constitutionally unjustifiable
inequality vis-a-vis voters
[*208] in irrationally favored
counties. A citizen's right to a vote
free of arbitrary impairment by state action has been judicially recognized as
a right secured by the Constitution, when such impairment resulted from
dilution by a false tally, cf. United
States v. Classic, 313 U.S. 299; or by a refusal to count votes from
arbitrarily selected precincts, cf. United
States v. Mosley, 238 U.S. 383, or by a stuffing of the ballot box,
cf. Ex parte Siebold, 100 U.S.
371; United States v. Saylor, 322 U.S. 385.
[***HR13] [***HR14]
It would not be necessary to decide whether appellants' allegations of
impairment of their votes by the 1901 apportionment will, ultimately, entitle
them to any relief, in order to hold that they have standing to seek it. If such impairment does produce a legally
cognizable injury, they are among those who have sustained it. They are asserting "a plain, direct and
adequate interest in maintaining the effectiveness of their votes," Coleman
v. Miller, 307 U.S., at 438, not merely a claim of "the right,
possessed by every citizen, to require that the Government be administered
according to law . . . ." Fairchild v. Hughes, 258 U.S. 126,
129; compare Leser v. Garnett, 258 U.S. 130. They are entitled to
a hearing and to the District Court's decision on their claims. "The very essence of civil liberty
certainly consists in the right of every individual to claim the protection of
the laws, whenever he receives an injury." Marbury v. Madison,
1 Cranch 137, 163.
IV.
JUSTICIABILITY.
[***HR2B]
In holding that the subject matter
of this suit was not justiciable, the District Court relied on Colegrove
v. Green, supra, and subsequent per curiam cases. n29 The [*209]
court [***681] stated: "From a review of these
decisions there can be no doubt that the federal rule . . . is that the federal
courts . . . will not intervene in cases of this type to compel legislative
reapportionment." 179 F.Supp., at 826. We understand the District Court to
have read the cited cases as
[**706] compelling the conclusion
that since the appellants sought to have a legislative apportionment held
unconstitutional, their suit presented a "political question" and was
therefore nonjusticiable. We hold that this challenge to an apportionment
presents no nonjusticiable "political question." The cited cases do
not hold the contrary.
n29 Cook v. Fortson, 329 U.S. 675; Turman
v. Duckworth, ibid.; Colegrove v. Barrett, 330 U.S. 804; MacDougall
v. Green, 335 U.S. 281; South v. Peters, 339 U.S. 276; Remmey
v. Smith, 342 U.S. 916; Anderson v. Jordan, 343 U.S. 912; Kidd
v. McCanless, 352 U.S. 920; Radford v. Gary, 352 U.S. 991.
[***HR15] Of course the mere fact that the suit seeks
protection of a political right does not mean it presents a political question.
Such an objection "is little more than a play upon words." Nixon
v. Herndon, 273 U.S. 536, 540. Rather, it is argued that apportionment
cases, whatever the actual wording of the complaint, can involve no federal
constitutional right except one resting on the guaranty of a republican form of
government, n30 and that complaints based on that clause have been held to
present political questions which are nonjusticiable.
n30 "The United States shall guarantee to every
State in this Union a Republican Form of Government, and shall protect each of
them against Invasion; and on Application of the Legislature, or of the
Executive (when the Legislature cannot be convened) against domestic
Violence." U.S. Const., Art. IV, §
4.
[***HR16] [***HR17]
We hold that the claim pleaded here neither rests upon nor implicates
the Guaranty Clause and that its justiciability is therefore not foreclosed by
our decisions of cases involving that clause.
The District Court misinterpreted Colegrove v. Green and
other decisions of this Court on which it relied. Appellants' claim that they are being denied
equal protection is justiciable, and if
[*210] "discrimination is
sufficiently shown, the right to relief under the equal protection clause is
not diminished by the fact that the discrimination relates to political
rights." Snowden v. Hughes, 321 U.S. 1, 11. To show why we
reject the argument based on the Guaranty Clause, we must examine the
authorities under it. But because there
appears to be some uncertainty as to why those cases did present political
questions, and specifically as to whether this apportionment case is like those
cases, we deem it necessary first to consider the contours of the
"political question" doctrine.
[***HR18] Our discussion, even at the price of
extending this opinion, requires review of a number of political question
cases, in order to expose the attributes of the doctrine -- attributes which,
in various settings, diverge, combine, appear, and disappear in seeming
disorderliness. Since that review is
undertaken solely to demonstrate that neither singly nor collectively do these
cases support a conclusion that this apportionment case is nonjusticiable, we
of course do not explore their implications in other contexts. That review reveals that in the Guaranty
Clause cases and in the other "political question" [***682]
cases, it is the relationship between the judiciary and the coordinate
branches of the Federal Government, and not the federal judiciary's
relationship to the States, which gives rise to the "political
question."
[***HR19] [***HR20]
[***HR21] We have said that
"In determining whether a question falls within [the political question]
category, the appropriateness under our system of government of attributing
finality to the action of the political departments and also the lack of
satisfactory criteria for a judicial determination are dominant
considerations." Coleman v. Miller, 307 U.S. 433, 454-455.
The nonjusticiability of a political question is primarily a function of the
separation of powers. Much confusion
results from the capacity of the "political question" label to
obscure the need for [*211] case-by-case inquiry. Deciding whether a matter has in any measure
been committed by the Constitution to another branch of government, or whether
the action of that branch exceeds whatever authority has been committed, is
itself a delicate exercise in constitutional interpretation, and is a
responsibility of this Court as ultimate interpreter of the Constitution. To demonstrate this requires no less than to
analyze representative [**707] cases and to infer from them the analytical
threads that make up the political question doctrine. We shall then show that none of those threads
catches this case.
[***HR22] [***HR23]
Foreign relations: There are sweeping statements to the effect that all
questions touching foreign relations are political questions. n31 Not only does
resolution of such issues frequently turn on standards that defy judicial
application, or involve the exercise of a discretion demonstrably committed to
the executive or legislature; n32 but many such questions uniquely demand
single-voiced statement of the Government's views. n33 Yet it is error to
suppose that every case or controversy which touches foreign relations lies
beyond judicial cognizance. Our cases in
this field seem invariably to show a discriminating analysis of the particular
question posed, in terms of the history of its management by the political
branches, of its susceptibility to judicial handling in the light of its nature
and posture in the specific case, and of the possible consequences [*212]
of judicial action. For example,
though a court will not ordinarily inquire whether a treaty has been
terminated, since on that question "governmental action . . . must be
regarded as of controlling importance," if there has been no conclusive
"governmental action" then a court can construe a treaty and may find
it provides the answer. Compare Terlinden
v. Ames, 184 U.S. 270, 285, with Society for the Propagation of the
Gospel in Foreign Parts v. New Haven, [***683]
8 Wheat. 464, 492-495. n34 Though a court will not undertake to construe
a treaty in a manner inconsistent with a subsequent federal statute, no similar
hesitancy obtains if the asserted clash is with state law. Compare Whitney v. Robertson,
124 U.S. 190, with Kolovrat v. Oregon, 366 U.S. 187.
n31 E. g., "The conduct of the foreign
relations of our Government is committed by the Constitution to the Executive
and Legislative -- 'the political' -- Departments of the Government, and the
propriety of what may be done in the exercise of this political power is not
subject to judicial inquiry or decision." Oetjen v. Central
Leather Co., 246 U.S. 297, 302.
n32 See Doe v. Braden, 16 How. 635, 657;
Taylor v. Morton, 23 Fed. Cas., No. 13,799 (C. C. D. Mass.) (Mr.
Justice Curtis), affirmed, 2 Black 481.
n33 See Doe v. Braden, 16 How. 635, 657.
n34 And see Clark v. Allen, 331 U.S.
503.
[***HR24] [***HR25]
[***HR26] While recognition of
foreign governments so strongly defies judicial treatment that without
executive recognition a foreign state has been called "a republic of whose
existence we know nothing," n35 and the judiciary ordinarily follows the
executive as to which nation has sovereignty over disputed territory, n36 once
sovereignty over an area is politically determined and declared, courts may
examine the resulting status and decide independently whether a statute applies
to that area. n37 Similarly, recognition of belligerency abroad is an executive
responsibility, but if the executive proclamations fall short of an explicit
answer, a court may construe them seeking, for example, to determine whether
the situation is such that statutes designed
[**708] to assure American
neutrality have [*213] become operative. The Three Friends, 166 U.S. 1, 63, 66.
Still again, though it is the executive that determines a person's status as
representative of a foreign government, Ex parte Hitz, 111 U.S. 766, the
executive's statements will be construed where necessary to determine the
court's jurisdiction, In re Baiz, 135 U.S. 403. Similar judicial action
in the absence of a recognizably authoritative executive declaration occurs in
cases involving the immunity from seizure of vessels owned by friendly foreign
governments. Compare Ex parte Peru,
318 U.S. 578, with Mexico v. Hoffman, 324 U.S. 30, 34-35.
n35 United States v. Klintock, 5 Wheat.
144, 149; see also United States v. Palmer, 3 Wheat. 610,
634-635.
n36 Foster & Elam v. Neilson, 2 Pet.
253, 307; and see Williams v. Suffolk Insurance Co., 13 Pet. 415,
420.
n37 Vermilya-Brown Co. v. Connell, 335
U.S. 377, 380; De Lima v. Bidwell, 182 U.S. 1, 180-200.
Dates of duration of
hostilities: Though it has been
stated broadly that "the power which declared the necessity is the power
to declare its cessation, and what the cessation requires," Commercial
Trust Co. v. Miller, 262 U.S. 51, 57, here too analysis reveals
isolable reasons for the presence of political questions, underlying this
Court's refusal to review the political departments' determination of when or
whether a war has ended. Dominant is the
need for finality in the political determination, for emergency's nature
demands "A prompt and unhesitating obedience," Martin v. Mott,
12 Wheat. 19, 30 (calling up of militia).
Moreover, "the cessation of hostilities does not necessarily end
the war power. It was stated in Hamilton
v. Kentucky Distilleries & W. Co., 251 U.S. 146, 161, that the war
power includes the power 'to remedy the evils which have arisen from its rise
and progress' and continues
[***684] during that
emergency. Stewart v. Kahn,
11 Wall. 493, 507." Fleming v. Mohawk Wrecking Co., 331 U.S.
111, 116. But deference rests on reason, not habit. n38 The question in a particular case may not
seriously implicate considerations of finality -- e. g., a public
program of importance [*214] (rent control) yet not central to the
emergency effort. n39 Further, clearly definable criteria for decision may be
available. In such case the political
question barrier falls away: "[A] Court is not at liberty to shut its eyes
to an obvious mistake, when the validity of the law depends upon the truth of
what is declared. . . . [It can] inquire
whether the exigency still existed upon which the continued operation of the
law depended." Chastleton Corp. v. Sinclair, 264 U.S. 543,
547-548. n40 Compare Woods v. Miller Co., 333 U.S. 138. On the
other hand, even in private litigation which directly implicates no feature of
separation of powers, lack of judicially discoverable standards and the drive
for even-handed application may impel reference to the political departments'
determination of dates of hostilities' beginning and ending. The Protector, 12 Wall. 700.
n38 See, e. g., Home Building & Loan Assn.
v. Blaisdell, 290 U.S. 398, 426.
n39 Contrast Martin v. Mott, supra.
n40 But cf. Dakota Central Tel. Co. v. South
Dakota, 250 U.S. 163, 184, 187.
[***HR27] [***HR28]
Validity of enactments: In Coleman v. Miller, supra, this
Court held that the questions of how long a proposed amendment to the Federal
Constitution remained open to ratification, and what effect a prior rejection
had on a subsequent ratification, were committed to congressional resolution
and involved criteria of decision that necessarily escaped the judicial grasp.
n41 Similar considerations apply to the enacting process: [**709]
"The respect due to coequal and independent departments," and
the need for finality and certainty about the status of a statute contribute to
judicial reluctance to inquire whether, as passed, it complied with all
requisite formalities. Field v. Clark,
143 U.S. 649, 672, 676-677; see Leser v. Garnett, 258 U.S. 130,
137. But it is not true that courts will never delve [*215]
into a legislature's records upon such a quest: If the enrolled statute
lacks an effective date, a court will not hesitate to seek it in the
legislative journals in order to preserve the enactment. Gardner v. The Collector, 6
Wall. 499. The political question doctrine, a tool for maintenance of
governmental order, will not be so applied as to promote only disorder.
n41 Cf. Dillon
v. Gloss, 256 U.S. 368. See also United States v. Sprague,
282 U.S. 716, 732.
The status of Indian tribes: This Court's deference to the political departments
in determining whether Indians are recognized as a tribe, while it reflects
familiar attributes of political questions, n42 United States v. Holliday,
3 Wall. 407, 419, also has a unique element
[***685] in that "the relation
of the Indians to the United States is marked by peculiar and cardinal
distinctions which exist no where else. . . .
[The Indians are] domestic dependent nations . . . in a state of
pupilage. Their relation to the United
States resembles that of a ward to his guardian." The Cherokee Nation
v. Georgia, 5 Pet. 1, 16, 17. n43 Yet, here too, there is no blanket
rule. While [*216]
"'It is for [Congress] . . . , and not for the courts, to determine
when the true interests of the Indian require
[**710] his release from [the]
condition of tutelage' . . . , it is not meant by this that Congress may bring
a community or body of people within the range of this power by arbitrarily
calling them an Indian tribe . . . ." United States v. Sandoval,
231 U.S. 28, 46. Able to discern what is "distinctly Indian, " ibid., the courts will strike
down [*217] any heedless extension of that label. They will not stand impotent before an
obvious instance of a manifestly unauthorized exercise of power.
n42 See also Fellows v. Blacksmith, 19
How. 366, 372; United States v. Old Settlers, 148 U.S. 427, 466;
and compare Doe v. Braden, 16 How. 635, 657.
n43 This case, so frequently cited for the broad
proposition that the status of an Indian tribe is a matter for the political
departments, is in fact a noteworthy example of the limited and precise impact
of a political question. The Cherokees brought an original suit in this Court
to enjoin Georgia's assertion of jurisdiction over Cherokee territory and
abolition of Cherokee government and laws.
Unquestionably the case lay at the vortex of most fiery political
embroilment. See 1 Warren, The Supreme
Court in United States History (Rev. ed.), 729-779. But in spite of some broader language in
separate opinions, all that the Court held was that it possessed no original
jurisdiction over the suit: for the Cherokees could in no view be considered
either a state of this Union or a "foreign state." Chief Justice
Marshall treated the question as one of de novo interpretation of words
in the Constitution. The Chief Justice
did say that "The acts of our government plainly recognize the Cherokee
nation as a state, and the courts are bound by those acts," but here he
referred to their existence "as a state, as a distinct political society,
separated from others . . . ." From there he went to "A question of
much more difficulty . . . . Do the
Cherokees constitute a foreign state in the sense of the constitution?" Id.,
at 16. Thus, while the Court referred to
"the political" for the decision whether the tribe was an entity, a
separate polity, it held that whether being an entity the tribe had such status
as to be entitled to sue originally was a judicially soluble issue: criteria
were discoverable in relevant phrases of the Constitution and in the common
understanding of the times. As to this
issue, the Court was not hampered by problems of the management of unusual
evidence or of possible interference with a congressional program. Moreover, Chief Justice Marshall's dictum
that "It savours too much of the exercise of political power to be within
the proper province of the judicial department," id., at 20, was
not addressed to the issue of the Cherokees' status to sue, but rather to the
breadth of the claim asserted and the impropriety of the relief sought. Compare Georgia v. Stanton, 6
Wall. 50, 77. The Chief Justice made clear that if the issue of the Cherokees'
rights arose in a customary legal context, "a proper case with proper
parties," it would be justiciable. Thus, when the same dispute produced a
case properly brought, in which the right asserted was one of protection under
federal treaties and laws from conflicting state law, and the relief sought was
the voiding of a conviction under that state law, the Court did void the
conviction. Worcester v. Georgia,
6 Pet. 515. There, the fact that the tribe was a separate polity served as a
datum contributing to the result, and despite the consequences in a heated
federal-state controversy and the opposition of the other branches of the
National Government, the judicial power acted to reverse the State Supreme
Court. An example of similar isolation
of a political question in the decision of a case is Luther v. Borden,
7 How. 1, see infra.
[***HR29] It is apparent that several formulations
which vary slightly according
[***686] to the settings in which
the questions arise may describe a political question, although each has one or
more elements which identify it as essentially a function of the separation of
powers. Prominent on the surface of any
case held to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political department; or
a lack of judicially discoverable and manageable standards for resolving it; or
the impossibility of deciding without an initial policy determination of a kind
clearly for nonjudicial discretion; or the impossibility of a court's undertaking
independent resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on one question.
Unless one of these formulations
is inextricable from the case at bar, there should be no dismissal for
nonjusticiability on the ground of a political question's presence. The doctrine of which we treat is one of "political
questions," not one of "political cases." The courts cannot
reject as "no law suit" a bona fide controversy as to whether some
action denominated "political" exceeds constitutional authority. The cases we have reviewed show the necessity
for discriminating inquiry into the precise facts and posture of the particular
case, and the impossibility of resolution by any semantic cataloguing.
[***HR30] But it is argued that this case shares the
characteristics of decisions that constitute a category not yet considered,
cases concerning the Constitution's guaranty, in Art. IV, [*218]
§ 4, of a republican form of
government. A conclusion as to whether
the case at bar does present a political question cannot be confidently reached
until we have considered those cases with special care. We shall discover that Guaranty Clause claims
involve those elements which define a "political question," and for
that reason and no other, they are nonjusticiable. In particular, we shall
discover that the nonjusticiability of such claims has nothing to do with their
touching upon matters of state governmental organization.
Republican form of government:
Luther v. Borden, 7 How. 1,
though in form simply an action for damages for trespass was, as Daniel Webster
said in opening the argument for the defense, "an unusual case." n44
The defendants, admitting an otherwise tortious breaking and entering, sought
to [**711] justify their action on the ground that they
were agents of the established lawful government of Rhode Island, which State
was then under martial law to defend itself from active insurrection; that the
plaintiff was engaged in that insurrection; and that they entered under orders
to arrest the plaintiff. The case arose
"out of the unfortunate political differences which agitated the people of
Rhode Island in 1841 and 1842," 7 How., at 34, and which had resulted in a
situation wherein two groups laid competing claims to recognition as the lawful
government. n45 [***687] The plaintiff's right to [*219]
recover depended upon which of the two groups was entitled to such
recognition; but the lower court's refusal to receive evidence or hear argument
on that issue, its charge to the jury that the earlier established or
"charter" government was lawful, and the verdict for the defendants,
were affirmed upon appeal to this Court.
n44 7 How., at 29. And see 11 The Writings and
Speeches of Daniel Webster 217 (1903).
n45 See Mowry, The Dorr War (1901), and its exhaustive
bibliography. And for an account of
circumstances surrounding the decision here, see 2 Warren, The Supreme Court in
United States History (Rev. ed.), 185-195.
Dorr himself, head of one of the two groups and held
in a Rhode Island jail under a conviction for treason, had earlier sought a
decision from the Supreme Court that his was the lawful government. His application for original habeas corpus in
the Supreme Court was denied because the federal courts then lacked authority
to issue habeas for a prisoner held under a state court sentence. Ex parte Dorr, 3 How. 103.
Chief Justice Taney's opinion for
the Court reasoned as follows: (1) If a court were to hold the defendants' acts
unjustified because the charter government had no legal existence during the
period in question, it would follow that all of that government's actions --
laws enacted, taxes collected, salaries paid, accounts settled, sentences
passed -- were of no effect; and that "the officers who carried their
decisions into operation [were] answerable as trespassers, if not in some cases
as criminals." n46 There was, of course, no room for application of any
doctrine of de facto status to uphold prior acts of an officer not
authorized de jure, for such would have defeated the plaintiff's very
action. A decision for the plaintiff
would inevitably have produced some significant measure of chaos, a consequence
to be avoided if it could be done without abnegation of the judicial duty to
uphold the Constitution.
n46 7 How., at 39.
(2) No state court had recognized
as a judicial responsibility settlement of the issue of the locus of state
governmental authority. Indeed, the
courts of Rhode Island had in several cases held that "it rested with the
political power to decide whether the charter government had been displaced or
not," and that that department had acknowledged no change.
[*220]
(3) Since "the question relates, altogether, to the constitution
and laws of [the] . . . State," the courts of the United States had to
follow the state courts' decisions unless there was a federal constitutional
ground for overturning them. n47
n47 Id., at 39, 40.
(4) No provision of the
Constitution could be or had been invoked for this purpose except Art. IV,
§ 4, the Guaranty Clause. Having already noted the absence of standards
whereby the choice between governments could be made by a court acting
independently, Chief Justice Taney now found further textual and practical
reasons for concluding that, if any department of the United States was
empowered by the Guaranty Clause to resolve the issue, it was not the
judiciary:
"Under this article of the
Constitution it rests with Congress to decide what government is the
established one in a State. For as the
United States guarantee to each State a republican government, Congress [**712]
must necessarily decide what government is established in the State
before it can determine whether it is republican or not. And when the senators and representatives of
a State are admitted into the councils of the Union, the authority of the
government under which they are appointed, as well as its republican [***688]
character, is recognized by the proper constitutional authority. And its decision is binding on every other
department of the government, and could not be questioned in a judicial
tribunal. It is true that the contest in
this case did not last long enough to bring the matter to this issue; and . . .
Congress was not called upon to decide the controversy. Yet the right to decide is placed there, and
not in the courts.
[*221]
"So, too, as relates to the clause in the above-mentioned article
of the Constitution, providing for cases of domestic violence. It rested with Congress, too, to determine
upon the means proper to be adopted to fulfill this guarantee. . . . By the act of February 28, 1795, [Congress]
provided, that, 'in case of an insurrection in any State against the government
thereof, it shall be lawful for the President of the United States, on
application of the legislature of such State or of the executive (when the
legislature cannot be convened), to call forth such number of the militia of
any other State or States, as may be applied for, as he may judge sufficient to
suppress such insurrection.'
"By this act, the power of
deciding whether the exigency had arisen upon which the government of the
United States is bound to interfere, is given to the President. . . .
"After the President has
acted and called out the militia, is a Circuit Court of the United States
authorized to inquire whether his decision was right? . . . If the judicial power extends so far, the
guarantee contained in the Constitution of the United States is a guarantee of
anarchy, and not of order. . . .
"It is true that in this case
the militia were not called out by the President. But upon the application of the governor
under the charter government, the President recognized him as the executive
power of the State, and took measures to call out the militia to support his authority
if it should be found necessary for the general government to interfere . . .
. Certainly no court of the United
States, with a knowledge of this decision, would have been justified in
recognizing the opposing party as the lawful government . . . . [*222]
In the case of foreign nations, the government acknowledged by the
President is always recognized in the courts of justice. . . ." 7 How., at
42-44.
Clearly, several factors were
thought by the Court in Luther to make the question there
"political": the commitment to the other branches of the decision as
to which is the lawful state government; the unambiguous action by the
President, in recognizing the charter government as the lawful authority; the
need for finality in the executive's decision; and the lack of criteria by
which a court could determine which form of government was republican. n48
n48 Even though the Court wrote of unrestrained
legislative and executive authority under this Guaranty, thus making its
enforcement a political question, the Court plainly implied that the political
question barrier was no absolute: "Unquestionably a military government,
established as the permanent government of the State, would not be a republican
government, and it would be the duty of Congress to overthrow it." 7 How.,
at 45. Of course, it does not necessarily follow that if Congress did not act,
the Court would. For while the judiciary
might be able to decide the limits of the meaning of "republican
form," and thus the factor of lack of criteria might fall away, there
would remain other possible barriers to decision because of primary commitment
to another branch, which would have to be considered in the particular fact
setting presented.
That was not the only occasion on which this Court
indicated that lack of criteria does not obliterate the Guaranty's extreme
limits: "The guaranty is of a republican form of government. No particular government is designated as
republican, neither is the exact form to be guaranteed, in any manner
especially designated. Here, as in other
parts of the instrument, we are compelled to resort elsewhere to ascertain what
was intended.
"The guaranty necessarily implies a duty on the
part of the States themselves to provide such a government. All the States had governments when the
Constitution was adopted. In all the
people participated to some extent, through their representatives elected in
the manner specially provided. These
governments the Constitution did not change.
They were accepted precisely as they were, and it is, therefore, to be
presumed that they were such as it was the duty of the States to provide. Thus we have unmistakable evidence of what
was republican in form, within the meaning of that term as employed in the
Constitution." Minor v. Happersett, 21 Wall. 162, 175-176.
There, the question was whether a government republican in form could deny the
vote to women.
In re Duncan,
139 U.S. 449, upheld a murder conviction against a claim that the relevant
codes had been invalidly enacted. The
Court there said:
"By the Constitution, a republican form of
government is guaranteed to every State in the Union, and the distinguishing
feature of that form is the right of the people to choose their own officers
for governmental administration, and pass their own laws in virtue of the
legislative power reposed in representative bodies, whose legitimate acts may
be said to be those of the people themselves; but, while the people are thus
the source of political power, their governments, National and State, have been
limited by written constitutions, and they have themselves thereby set bounds
to their own power, as against the sudden impulses of mere majorities."
139 U.S., at 461. But the Court did not find any of these fundamental
principles violated.
[*223]
[**713] But [***689]
the only significance that Luther could have for our immediate
purposes is in its holding that the Guaranty Clause is not a repository of
judicially manageable standards which a court could utilize independently in
order to identify a State's lawful government.
The Court has since refused to resort to the Guaranty Clause -- which
alone had been invoked for the purpose -- as the source of a constitutional
standard for invalidating state action.
See Taylor & Marshall v. Beckham (No. 1), 178 U.S. 548
(claim that Kentucky's resolution of contested gubernatorial election deprived
voters of republican government held nonjusticiable); Pacific States Tel. Co.
v. Oregon, 223 U.S. 118 (claim that initiative and referendum negated
republican government held nonjusticiable); Kiernan v. Portland,
223 U.S. 151 (claim that municipal charter amendment per municipal
initiative and referendum negated republican government held
nonjusticiable); [*224] Marshall v. Dye, 231 U.S. 250
(claim that Indiana's constitutional amendment procedure negated republican
government held nonjusticiable); O'Neill v. Leamer, 239 U.S. 244
(claim that delegation to court of power to form drainage districts negated
republican government held "futile"); Ohio ex rel. Davis v. Hildebrant,
241 U.S. 565 (claim that invalidation of state reapportionment statute per
referendum negates republican government held nonjusticiable); n49 Mountain
Timber Co. v. Washington, 243 U.S. 219 [***690]
[**714] (claim that workmen's
compensation violates republican government held nonjusticiable); Ohio ex
rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74 (claim
that rule requiring invalidation of statute by all but one justice of state
court negated republican government held nonjusticiable); Highland Farms
Dairy v. Agnew, 300 U.S. 608 (claim that delegation to agency of
power to control milk prices violated republican government, rejected).
n49 But cf. Hawke
v. Smith (No. 1), 253 U.S. 221; National Prohibition Cases, 253
U.S. 350.
Just as the Court has consistently
held that a challenge to state action based on the Guaranty Clause presents no
justiciable question so has it held, and for the same reasons, that challenges
to congressional action on the ground of inconsistency with that clause present
no justiciable question. In Georgia
v. Stanton, 6 Wall. 50, the State sought by an original bill to enjoin
execution of the Reconstruction Acts, claiming that it already possessed
"A republican State, in every political, legal, constitutional, and
juridical sense," and that enforcement of the new Acts "Instead of
keeping the guaranty against a forcible overthrow of its government by foreign
invaders or domestic insurgents, . . . is destroying that very government by
force." n50 Congress had clearly refused to [*225]
recognize the republican character of the government of the suing State.
n51 It seemed to the Court that the only constitutional claim that could be
presented was under the Guaranty Clause, and Congress having determined that
the effects of the recent hostilities required extraordinary measures to
restore governments of a republican form, this Court refused to interfere with
Congress' action at the behest of a claimant relying on that very guaranty. n52
n50 6 Wall., at 65, 66.
n51 The First Reconstruction Act opened: "Whereas
no legal State governments . . . now exists [sic] in the rebel States of
. . . Georgia [and] Mississippi . . . ; and whereas it is necessary that peace
and good order should be enforced in said States until loyal and republican
State governments can be legally established: . . ." 14 Stat. 428. And see 15 Stat. 2, 14.
n52 In Mississippi v. Johnson, 4 Wall.
475, the State sought to enjoin the President from executing the Acts, alleging
that his role was purely ministerial.
The Court held that the duties were in no sense ministerial, and that
although the State sought to compel inaction rather than action, the absolute
lack of precedent for any such distinction left the case one in which
"general principles . . . forbid judicial interference with the exercise
of Executive discretion." 4 Wall., at 499. See also Mississippi v. Stanton,
154 U.S. 554; and see 2 Warren, The Supreme Court in United States History
(Rev. ed.), 463.
For another instance of congressional action
challenged as transgressing the Guaranty Clause, see The Collector v. Day,
11 Wall. 113, 125-126, overruled, Graves v. O'Keefe, 306 U.S.
466.
In only a few other cases has the
Court considered Art. IV, § 4, in
relation to congressional action. It has
refused to pass on a claim relying on the Guaranty Clause to establish that
Congress lacked power to allow the States to employ the referendum in passing
on legislation redistricting for congressional seats. Ohio ex rel. Davis
v. Hildebrant, supra. And it has pointed out that Congress is not
required to establish republican government in the territories before they
become States, and before they have attained a sufficient population to warrant
a [*226]
popularly elected legislature. Downes
v. Bidwell, [***691] 182 U.S. 244, 278-279 (dictum). n53
n53 On the other hand, the implication of the Guaranty
Clause in a case concerning congressional action does not always preclude
judicial action. It has been held that
the clause gives Congress no power to impose restrictions upon a State's
admission which would undercut the constitutional mandate that the States be on
an equal footing. Coyle v. Smith,
221 U.S. 559. And in Texas v. White, 7 Wall. 700, although
Congress had determined that the State's government was not republican in form,
the State's standing to bring an original action in this Court was sustained.
We come, finally, to the ultimate
inquiry whether our precedents as to what constitutes a nonjusticiable
"political [**715] question" bring the case before us under
the umbrella of that doctrine. A natural
beginning is to note whether any of the common characteristics which we have
been able to identify and label descriptively are present. We find none: The question here is the
consistency of state action with the Federal Constitution. We have no question decided, or to be
decided, by a political branch of government coequal with this Court. Nor do we risk embarrassment of our
government abroad, or grave disturbance at home n54 if we take issue with
Tennessee as to the constitutionality of her action here challenged. Nor need the appellants, in order to succeed
in this action, ask the Court to enter upon policy determinations for which
judicially manageable standards are lacking.
Judicial standards under the Equal Protection Clause are well developed
and familiar, and it has been open to courts since the enactment of the
Fourteenth Amendment to determine, if on the particular facts they must, that a
discrimination reflects no policy, but simply arbitrary and capricious
action.
n54 See, infra, p. 235, considering Kidd
v. McCanless, 352 U.S. 920.
[***HR31] This case does, in one sense, involve the
allocation of political power within a State, and the appellants [*227]
might conceivably have added a claim under the Guaranty Clause. Of course, as we have seen, any reliance on
that clause would be futile. But because
any reliance on the Guaranty Clause could not have succeeded it does not follow
that appellants may not be heard on the equal protection claim which in fact
they tender. True, it must be clear that
the Fourteenth Amendment claim is not so enmeshed with those political question
elements which render Guaranty Clause claims nonjusticiable as actually to
present a political question itself. But
we have found that not to be the case here.
In this connection special
attention is due Pacific States Tel. Co. v. Oregon, 223 U.S. 118.
In that case a corporation tax statute enacted by the initiative was attacked
ostensibly on three grounds: (1) due process; (2) equal protection; and (3) the
Guaranty Clause. But it was clear that
the first two grounds were invoked solely in aid of the contention that the tax
was invalid by reason of its passage:
"The defendant company does not contend here that it could not
have been required to pay a license tax.
It does not assert that it was denied an opportunity to be heard as to
the amount for which it was taxed, or that there was anything inhering in the
tax or involved intrinsically in the law which violated any of its
constitutional rights. If such
questions [***692] had been raised they would have been
justiciable, and therefore would have required the calling into operation of
judicial power. Instead, however, of
doing any of these things, the attack on the statute here made is of a wholly
different character. Its essentially
political nature is at once made manifest by understanding that the assault
which the contention here advanced makes it [sic] not on the tax as a
tax, but on the State as a State. It is
addressed to the [*228] framework and political character of the
government by which the statute levying the tax was passed. It is the government, the political entity,
which (reducing the case to its essence) is called to the bar of [**716]
this court, not for the purpose of testing judicially some exercise of
power assailed, on the ground that its exertion has injuriously affected the
rights of an individual because of repugnancy to some constitutional
limitation, but to demand of the State that it establish its right to exist as
a State, republican in form." 223 U.S., at 150-151.
The due process and equal
protection claims were held nonjusticiable in Pacific States not because
they happened to be joined with a Guaranty Clause claim, or because they sought
to place before the Court a subject matter which might conceivably have been
dealt with through the Guaranty Clause, but because the Court believed that
they were invoked merely in verbal aid of the resolution of issues which, in
its view, entailed political questions. Pacific States may be compared
with cases such as Mountain Timber Co. v. Washington, 243 U.S.
219, wherein the Court refused to consider whether a workmen's compensation act
violated the Guaranty Clause but considered at length, and rejected, due
process and equal protection arguments advanced against it; and O'Neill
v. Leamer, 239 U.S. 244, wherein the Court refused to consider whether
Nebraska's delegation of power to form drainage districts violated the Guaranty
Clause, but went on to consider and reject the contention that the action
against which an injunction was sought was not a taking for a public purpose.
We conclude then that the
nonjusticiability of claims resting on the Guaranty Clause which arises from
their embodiment of questions that were thought "political," can have
no bearing upon the justiciability of the equal protection claim presented in
this case. Finally, we [*229]
emphasize that it is the involvement in Guaranty Clause claims of the elements
thought to define "political questions," and no other feature, which
could render them nonjusticiable. Specifically, we have said that such claims
are not held nonjusticiable because they touch matters of state governmental
organization. Brief examination of a few
cases demonstrates this.
When challenges to state action
respecting matters of "the administration of the affairs of the State and
the officers through whom they are conducted" n55 have rested on claims of
constitutional deprivation which are amenable to judicial correction, this
Court has acted upon its view of the merits of the claim. For example, in Boyd v. Nebraska ex
rel. Thayer, 143 U.S. 135, we reversed the Nebraska Supreme Court's
decision that Nebraska's Governor was not a citizen of [***693]
the United States or of the State and therefore could not continue in
office. In Kennard v. Louisiana
ex rel. Morgan, 92 U.S. 480, and Foster v. Kansas ex rel.
Johnston, 112 U.S. 201, we considered whether persons had been removed from
public office by procedures consistent with the Fourteenth Amendment's due
process guaranty, and held on the merits that they had. And only last Term, in Gomillion v. Lightfoot,
364 U.S. 339, we applied the Fifteenth Amendment to strike down a redrafting of
municipal boundaries which effected a discriminatory impairment of voting
rights, in the face of what a majority of the Court of Appeals thought to be a
sweeping commitment to state legislatures of the power to draw and redraw such
boundaries. n56
n55 Boyd v. Nebraska ex rel. Thayer, 143
U.S. 135, 183 (Field, J., dissenting).
n56 Gomillion v. Lightfoot, 270 F.2d
594, relying upon, inter alia, Hunter v. Pittsburgh, 207 U.S.
161.
Gomillion was brought by a Negro who had been a resident of the
City of [**717] Tuskegee, Alabama, until the municipal
boundaries were so recast by the State Legislature [*230]
as to exclude practically all Negroes.
The plaintiff claimed deprivation of the right to vote in municipal
elections. The District Court's dismissal for want of jurisdiction and failure
to state a claim upon which relief could be granted was affirmed by the Court
of Appeals. This Court unanimously
reversed. This Court's answer to the argument
that States enjoyed unrestricted control over municipal boundaries was:
"Legislative control of municipalities, no less than other state
power, lies within the scope of relevant limitations imposed by the United
States Constitution. . . . The opposite
conclusion, urged upon us by respondents, would sanction the achievement by a
State of any impairment of voting rights whatever so long as it was cloaked in
the garb of the realignment of political subdivisions. 'It is inconceivable that guaranties embedded
in the Constitution of the United States may thus be manipulated out of existence.'"
364 U.S., at 344-345.
To a second argument, that Colegrove
v. Green, supra, was a barrier to hearing the merits of the case, the
Court responded that Gomillion was lifted "out of the so-called
'political' arena and into the conventional sphere of constitutional
litigation" because here was discriminatory treatment of a racial minority
violating the Fifteenth Amendment.
"A statute which is alleged to have worked unconstitutional
deprivations of petitioners' rights is not immune to attack simply because the
mechanism employed by the legislature is a redefinition of municipal
boundaries. . . . While in form this is
merely an act redefining metes and bounds, if the allegations are established,
the inescapable human effect of this essay in geometry and geography is to
despoil colored citizens, and only colored citizens, of [*231]
their theretofore enjoyed voting rights.
That was not Colegrove v. Green.
"When a State exercises power
wholly within the domain of state interest, it is insulated from federal
judicial review. But such insulation is
not carried over when state power is used as an instrument for circumventing a
federally protected right." 364 U.S., at 347. n57
n57 The Court's opinion was joined by MR. JUSTICE
DOUGLAS, noting his adherence to the dissents in Colegrove and South
v. Peters, supra; and the judgment was concurred in by MR. JUSTICE
WHITTAKER, who wrote that the decision should rest on the Equal Protection
Clause rather than on the Fifteenth Amendment, since there had been not solely
a denial of the vote (if there had been that at all) but also a "fencing
out" of a racial group.
We
[***694] have not overlooked such
cases as In re Sawyer, 124 U.S. 200, and Walton v. House of
Representatives, 265 U.S. 487, which held that federal equity power could
not be exercised to enjoin a state proceeding to remove a public officer. But these decisions explicitly reflect only a
traditional limit upon equity jurisdiction, and not upon federal courts' power
to inquire into matters of state governmental organization. This is clear not only from the opinions in
those cases, but also from White v. Berry, 171 U.S. 366, which,
relying on Sawyer, withheld federal equity from staying removal of a federal
officer. Wilson v. North
Carolina, 169 U.S. 586, simply dismissed an appeal from an unsuccessful
suit to upset a State's removal procedure, on the ground that the
constitutional claim presented -- that a jury trial was necessary if the
removal procedure was to comport with due process requirements -- was
frivolous. Finally, in Taylor and
Marshall [**718] v. Beckham (No. 1), 178 U.S. 548,
where losing candidates attacked the constitutionality of Kentucky's resolution
of a contested gubernatorial election, the Court refused to consider the merits
of a claim posited upon [*232] the Guaranty Clause, holding it presented a
political question, but also held on the merits that the ousted candidates had
suffered no deprivation of property without due process of law. n58
n58 No holding to the contrary is to be found in Cave
v. Newell, 246 U.S. 650, dismissing a writ of error to the Supreme Court
of Missouri, 272 Mo. 653, 199 S. W. 1014; or in Snowden v. Hughes,
321 U.S. 1.
Since, as has been established,
the equal protection claim tendered in this case does not require decision of
any political question, and since the presence of a matter affecting state
government does not render the case nonjusticiable, it seems appropriate to
examine again the reasoning by which the District Court reached its conclusion
that the case was nonjusticiable.
We have already noted that the
District Court's holding that the subject matter of this complaint was
nonjusticiable relied upon Colegrove v. Green, supra, and later
cases. Some of those concerned the
choice of members of a state legislature, as in this case; others, like Colegrove
itself and earlier precedents, Smiley v. Holm, 285 U.S. 355, Koenig
v. Flynn, 285 U.S. 375, and Carroll v. Becker, 285 U.S.
380, concerned the choice of Representatives in the Federal Congress. Smiley, Koenig and Carroll
settled the issue in favor of justiciability of questions of congressional
redistricting. The Court followed these
precedents in Colegrove although over the dissent of three of the seven
Justices who participated in that decision.
On the issue of justiciability, all four Justices comprising a majority
relied upon Smiley v. Holm, but in two opinions, one for three
Justices, 328 U.S., at 566, 568, and a separate one by Mr. Justice Rutledge,
328 U.S., at 564. The argument that congressional redistricting problems
presented a "political question" the resolution of [***695]
which was confided to Congress might have been rested upon Art. I,
§ 4, Art. I, § 5, Art. I, §
2, and Amendment [*233] XIV, §
2. Mr. Justice Rutledge said:
"But for the ruling in Smiley v. Holm, 285 U.S. 355, I
should have supposed that the provisions of the Constitution, Art. I, § 4, that 'The Times, Places and Manner of
holding Elections for . . .
Representatives, shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law make or alter such Regulations
. . .'; Art. I, § 2 [but see Amendment
XIV, § 2], vesting in Congress the duty
of apportionment of representatives among the several states 'according to
their respective Numbers'; and Art. I, §
5, making each House the sole judge of the qualifications of its own
members, would remove the issues in this case from justiciable cognizance. But, in my judgment, the Smiley case
rules squarely to the contrary, save only in the matter of degree. . . . Assuming that that decision is to stand, I
think . . . that its effect is to rule that this Court has power to afford
relief in a case of this type as against the objection that the issues are not
justiciable." 328 U.S., at 564-565. Accordingly, Mr. Justice Rutledge
joined in the conclusion that the case was justiciable, although he held that
the dismissal of the complaint should be affirmed. His view was that "The shortness of the
time remaining [before forthcoming elections] makes it doubtful whether action
could, or would, be taken in time to secure for petitioners the effective
relief they seek. . . . I think,
therefore, [**719] the case is one in which the Court may
properly, and should, decline to exercise its jurisdiction. Accordingly, the judgment should be affirmed
and I join in that disposition of the cause." 328 U.S., at 565-566. n59
n59 The ground of Mr. Justice Rutledge's vote to
affirm is further explained in his footnote 3, 328 U.S., at 566: "'The
power of a court of equity to act is a discretionary one. . . . Where a federal court of equity is asked to
interfere with the enforcement of state laws, it should do so only "to
prevent irreparable injury which is clear and imminent."' American
Federation of Labor v. Watson, 327 U.S. 582, 593 and cases
cited."
No constitutional questions, including the question
whether voters have a judicially enforceable constitutional right to vote at
elections of congressmen from districts of equal population, were decided in Colegrove. Six of the participating Justices reached the
questions but divided three to three on their merits. Mr. Justice Rutledge believed that it was not
necessary to decide them. He said:
"There is [an alternative to constitutional decision] in this case. And I think the gravity of the constitutional
questions raised so great, together with the possibilities for collision [with
the political departments of the Government], that the admonition [against
avoidable constitutional decision] is appropriate to be followed here. Other reasons support this view, including
the fact that, in my opinion, the basic ruling and less important ones in Smiley
v. Holm, supra, would otherwise be brought into question." 328
U.S., at 564-565. He also joined with his brethren who shared his view that the
issues were justiciable in considering that Wood v. Broom, 287
U.S. 1, decided no constitutional questions but "the Court disposed of the
cause on the ground that the 1929 Reapportionment Act, 46 Stat. 21, did not
carry forward the requirements of the 1911 Act, 37 Stat. 13, and declined to
decide whether there was equity in the bill." 328 U.S., at 565; see also, id.,
at 573. We agree with this view of Wood v. Broom.
[*234]
Article I, § § 2, 4, and 5, and
Amendment XIV, § 2, relate only to
congressional elections and obviously do not govern apportionment of state
legislatures. However, our decisions in
favor of justiciability even in light of those provisions plainly afford no
support for the District Court's conclusion
[***696] that the subject matter
of this controversy presents a political question. Indeed, the refusal to award
relief in Colegrove resulted only from the controlling view of a want of
equity. Nor is anything contrary to be
found in those per curiams that came after Colegrove. This Court dismissed the appeals in Cook
v. Fortson and Turman v. Duckworth, 329 U.S. 675, as
moot. MacDougall v. Green,
335 U.S. 281, held only that in that case equity would not act to void the
State's requirement that there be at least a minimum of support for
nominees [*235] for state-wide office, over at least a
minimal area of the State. Problems of
timing were critical in Remmey v. Smith, 342 U.S. 916, dismissing
for want of a substantial federal question a three-judge court's dismissal of
the suit as prematurely brought, 102 F.Supp. 708; and in Hartsfield v. Sloan,
357 U.S. 916, denying mandamus sought to compel the convening of a three-judge
court -- movants urged the Court to advance consideration of their case,
"Inasmuch as the mere lapse of time before this case can be reached in the
normal course of . . . business may defeat the cause, and inasmuch as the time
problem is due to the inherent nature of the case . . . ." South v.
Peters, 339 U.S. 276, like Colegrove appears to be a refusal to
exercise equity's powers; see the statement of the holding, quoted, supra,
p. 203. And Cox v. Peters,
342 U.S. 936, dismissed for want of a substantial federal question the appeal
from the state court's holding that their primary elections implicated no
"state action." See 208 Ga. 498, 67 S. E. 2d 579. But compare Terry
v. Adams, 345 U.S. 461.
[**720]
Tedesco v. Board of Supervisors, 339 U.S. 940, indicates
solely that no substantial federal question was raised by a state court's
refusal to upset the districting of city council seats, especially as it was
urged that there was a rational justification for the challenged
districting. See 43 So. 2d 514. Similarly,
in Anderson v. Jordan, 343 U.S. 912, it was certain only that the
state court had refused to issue a discretionary writ, original mandamus in the
Supreme Court. That had been denied
without opinion, and of course it was urged here that an adequate state ground
barred this Court's review. And in Kidd
v. McCanless, 200 Tenn. 273, 292 S. W. 2d 40, the Supreme Court of
Tennessee held that it could not invalidate the very statute at issue in the
case at bar, but its holding rested on its state law of remedies, i. e.,
the state view of [*236] de facto officers, n60 and not on any
view that the norm for legislative apportionment in Tennessee is not numbers of
qualified voters resident in the several counties. Of course this Court was there precluded by
the adequate state ground, and in dismissing the appeal, 352 U.S. 920, we cited
Anderson, supra, as well as Colegrove. Nor does the Tennessee court's decision in
that case bear upon this, for just as in Smith v. Holm, 220 Minn.
486, 19 N. W. 2d 914, and Magraw v. Donovan, 163 F.Supp.
184, [***697] 177 F.Supp. 803, a state court's inability to
grant relief does not bar a federal court's assuming jurisdiction to inquire
into alleged deprivation of federal constitutional rights. Problems of relief also controlled in Radford
v. Gary, 352 U.S. 991, affirming the District Court's refusal to
mandamus the Governor to call a session of the legislature, to mandamus the
legislature then to apportion, and if they did not comply, to mandamus the
State Supreme Court to do so. And Matthews
v. Handley, 361 U.S. 127, affirmed a refusal to strike down the State's
gross income tax statute -- urged on the ground that the legislature was
malapportioned -- that had rested on the adequacy of available state legal
remedies for suits involving that tax, including challenges to its
constitutionality. Lastly, Colegrove
v. Barrett, 330 U.S. 804, in which Mr. Justice Rutledge concurred in
this Court's refusal to note the appeal from a dismissal for want of equity, is
sufficiently explained by his statement in Cook v. Fortson, supra:
"The discretionary exercise or nonexercise of equitable or declaratory
judgment jurisdiction . . . in one case is not precedent in another case [*237]
where the facts differ." 329 U.S., at 678, n. 8. (Citations
omitted.)
n60 See also Buford v. State Board of
Elections, 206 Tenn. 480, 334 S. W. 2d 726; State ex rel. Sanborn v.
Davidson County Board of Election Comm'rs, No. 36,391 Tenn. Sup. Ct.,
Oct. 29, 1954 (unreported); 8 Vand. L. Rev. 501 (1955).
[***HR2C]
We conclude that the complaint's
allegations of a denial of equal protection present a justiciable
constitutional cause of action upon which appellants are entitled to a trial
and a decision. The right asserted is
within the reach of judicial protection under the Fourteenth Amendment.
The judgment of the District Court
is reversed and the cause is remanded for further proceedings consistent with
this opinion.
Reversed and remanded .
MR. JUSTICE WHITTAKER did not
participate in the decision of this case.
APPENDIX TO OPINION OF THE COURT.
The Tennessee Code Annotated
provides for representation in the General Assembly as follows:
"3-101. Composition -- Counties electing one
representative each. -- The general
[**721] assembly of the state of
Tennessee shall be composed of thirty-three (33) senators and ninety-nine (99)
representatives, to be apportioned among the qualified voters of the state as
follows: Until the next enumeration and apportionment of voters each of the
following counties shall elect one (1) representative, to wit: Bedford, Blount,
Cannon, Carroll, Chester, Cocke, Claiborne, Coffee, Crockett, DeKalb, Dickson,
Dyer, Fayette, Franklin, Giles, Greene, Hardeman, Hardin, Henry, Hickman,
Hawkins, Haywood, Jackson, Lake, Lauderdale, Lawrence, Lincoln, Marion,
Marshall, Maury, Monroe, Montgomery, Moore, McMinn, McNairy, Obion, Overton,
Putnam, Roane, Robertson, Rutherford, Sevier, Smith, Stewart, Sullivan, Sumner,
Tipton, Warren, Washington, White, Weakley, Williamson [*238]
and Wilson. [Acts 1881 (E. S.),
ch. 5, § 1; 1881 (E. S.), ch. 6, § 1; 1901, ch. 122, § 2; 1907, ch. 178, § § 1,
2; 1915, ch. 145; Shan., § 123; Acts
1919, ch. 147, § § 1, 2; 1925 Private,
ch. 472, § 1; Code 1932, § 140; Acts 1935, ch. 150, § 1; 1941, ch. 58, § 1; 1945, ch. 68, § 1; C. Supp. 1950, § 140.]
[***698]
Counties electing two representatives each. -- The following
counties shall elect two (2) representatives each, to wit: Gibson and Madison. [Acts 1901, ch. 122, § 3; Shan., §
124; mod. Code 1932, § 141.]
"3-103. Counties electing three representatives
each. -- The following counties shall elect three (3) representatives each,
to wit: Knox and Hamilton. [Acts 1901,
ch. 122, § 4; Shan., § 125; Code 1932, § 142.]
"3-104. Davidson County. -- Davidson county
shall elect six (6) representatives.
[Acts 1901, ch. 122, § 5; Shan.,
§ 126; Code 1932, § 143.]
"3-105. Shelby county. -- Shelby county shall
elect eight (8) representatives. Said
county shall consist of eight (8) representative districts, numbered one (1)
through eight (8), each district co-extensive with the county, with one (1)
representative to be elected from each district. [Acts 1901, ch. 122, § 6; Shan., §
126a1; Code 1932, § 144; Acts
1957, ch. 220, § 1; 1959, ch. 213, §
1.]
"3-106. Joint representatives. -- The
following counties jointly, shall elect one representative, as follows, to wit:
"First district -- Johnson
and Carter.
"Second district -- Sullivan
and Hawkins.
"Third district --
Washington, Greene and Unicoi.
"Fourth district -- Jefferson
and Hamblen.
"Fifth district -- Hancock
and Grainger.
"Sixth district -- Scott,
Campbell, and Union.
"Seventh district -- Anderson
and Morgan.
"Eighth district -- Knox and
Loudon.
[*239]
"Ninth district -- Polk and Bradley.
"Tenth district -- Meigs and
Rhea.
"Eleventh district --
Cumberland, Bledsoe, Sequatchie, Van Buren and Grundy.
"Twelfth district --
Fentress, Pickett, Overton, Clay and Putnam.
"Fourteenth district --
Sumner, Trousdale and Macon.
"Fifteenth district --
Davidson and Wilson.
"Seventeenth district --
Giles, Lewis, Maury and Wayne.
"Eighteenth district --
Williamson, Cheatham and Robertson.
"Nineteenth district --
Montgomery and Houston.
"Twentieth district --
Humphreys and Perry.
"Twenty-first district --
Benton and Decatur.
"Twenty-second district --
Henry, Weakley and Carroll.
" [**722] Twenty-third district -- Madison and
Henderson.
"Twenty-sixth district --
Tipton and Lauderdale. [Acts 1901, ch.
122, § 7; 1907, ch. 178, § § 1, 2; 1915, ch. 145, § § 1, 2; Shan., § 127; Acts 1919, ch. 147, § 1; 1925 Private, ch. 472, § 2; Code 1932, § 145; Acts 1933, ch. 167, § 1; 1935, ch. 150, § 2; 1941, ch. 58, § 2; 1945, ch. 68, § 2; C. Supp. 1950, § 145; Acts 1957, ch. 220, § 2.]
"3-107. State senatorial districts. -- Until
the next enumeration and [***699] apportionment of voters, the following
counties shall comprise the senatorial districts, to wit:
"First district -- Johnson,
Carter, Unicoi, Greene, and Washington.
"Second district -- Sullivan
and Hawkins.
"Third district -- Hancock,
Morgan, Grainger, Claiborne, Union, Campbell, and Scott.
"Fourth district -- Cocke,
Hamblen, Jefferson, Sevier, and Blount.
"Fifth district -- Knox.
"Sixth district -- Knox,
Loudon, Anderson, and Roane.
[*240]
"Seventh district -- McMinn, Bradley, Monroe, and Polk.
"Eighth district -- Hamilton.
"Ninth district -- Rhea,
Meigs, Bledsoe, Sequatchie, Van Buren, White, and Cumberland.
"Tenth district -- Fentress,
Pickett, Clay, Overton, Putnam, and Jackson.
"Eleventh district -- Marion,
Franklin, Grundy and Warren.
"Twelfth district --
Rutherford, Cannon, and DeKalb.
"Thirteenth district --
Wilson and Smith.
"Fourteenth district --
Sumner, Trousdale and Macon.
"Fifteenth district --
Montgomery and Robertson.
"Sixteenth district --
Davidson.
"Seventeenth district --
Davidson.
"Eighteenth district --
Bedford, Coffee and Moore.
"Nineteenth district --
Lincoln and Marshall.
"Twentieth district -- Maury,
Perry and Lewis.
"Twenty-first district --
Hickman, Williamson and Cheatham.
"Twenty-second district --
Giles, Lawrence and Wayne.
"Twenty-third district --
Dickson, Humphreys, Houston and Stewart.
"Twenty-fourth district --
Henry and Carroll.
"Twenty-fifth district --
Madison, Henderson and Chester.
"Twenty-sixth district --
Hardeman, McNairy, Hardin, Decatur and Benton.
"Twenty-seventh district --
Gibson.
"Twenty-eighth district --
Lake, Obion and Weakley.
"Twenty-ninth district --
Dyer, Lauderdale and Crockett.
"Thirtieth district -- Tipton
and Shelby.
"Thirty-first district --
Haywood and Fayette.
"Thirty-second district --
Shelby.
[*241]
"Thirty-third district -- Shelby.
[Acts 1901, ch. 122, § 1; 1907,
ch. 3, § 1; Shan., § 128; Code 1932, § 146; Acts 1945, ch. 11, § 1; C. Supp. 1950, § 146.]"
Today's apportionment statute is
as enacted in 1901, with minor changes.
For example:
(1) In 1957, Shelby County was
raised from 7 1/2 to 8 representatives.
Acts of 1957, c. 220. See also
Acts of 1959, c. 213. The 1957 Act,
§ 2, abolished the Twenty-seventh Joint
Representative District, which had included Shelby and Fayette Counties.
[***700]
[**723] (2) In 1907, Marion
County was given a whole House seat instead of sharing a joint seat with
Franklin County. Acts of 1907, c.
178. Acts of 1915, c. 145, repealed that
change, restoring the status quo ante.
And that reversal was itself reversed, Acts of 1919, c. 147.
(3) James County was in 1901 one
of five counties in the Seventh State Senate District and one of the three in
the Ninth House District. It appears
that James County no longer exists but we are not advised when or how it was
dissolved.
(4) In 1945, Anderson and Roane
Counties were shifted to the Sixth State Senate District from the Seventh, and
Monroe and Polk Counties were shifted to the Seventh from the Sixth. Acts of 1945, c. 11.
CONCURBY:
DOUGLAS; CLARK; STEWART
CONCUR:
MR. JUSTICE DOUGLAS, concurring.
While I join the opinion of the
Court and, like the Court, do not reach the merits, a word of explanation is
necessary. n1 I put to one side the problems of "political" [*242]
questions involving the distribution of power between this Court, the
Congress, and the Chief Executive. We
have here a phase of the recurring problem of the relation of the federal
courts to state agencies. More
particularly, the question is the extent to which a State may weight one
person's vote more heavily than it does another's.
n1 I feel strongly that many of the cases cited by the
Court and involving so-called "political" questions were wrongly
decided.
In joining the opinion, I do not approve those
decisions but only construe the Court's opinion in this case as stating an
accurate historical account of what the prior cases have held.
So far as voting rights are
concerned, there are large gaps in the Constitution. Yet the right to vote is inherent in the
republican form of government envisaged by Article IV, Section 4 of the
Constitution. The House -- and now the
Senate -- are chosen by the people. The
time, manner, and place of elections of Senators and Representatives are left
to the States (Article I, Section 4, Clause 1; Amendment XVII) subject to the
regulatory power of Congress. A
"republican form" of government is guaranteed each State by Article
IV, Section 4, and each is likewise promised protection against invasion. n2 Ibid. [*243]
That the [***701] States may specify the qualifications for
voters [**724] is implicit in Article I, Section 2, Clause
1, which provides that the House of Representatives shall be chosen by the [*244]
people and that "the Electors (voters) in each State shall have the
Qualifications requisite for Electors (voters) of the most numerous Branch of
the State Legislature." The same provision, contained in the Seventeenth
Amendment, governs the election of Senators. Within limits those qualifications
may be fixed by state law. See Lassiter
v. Northampton Election Board, 360 U.S. 45, 50-51. Yet, as stated in Ex
parte Yarbrough, 110 U.S. 651, 663-664, those who vote for members of
Congress do not "owe their right to vote to the State law in any sense
which makes the exercise of the right to depend exclusively on the law of the
State." The power of Congress to prescribe the qualifications for voters and
thus override state law is not in issue here.
It is, however, clear that by reason of the commands of the Constitution
there are several qualifications that a State may not require.
n2 The statements in Luther v. Borden, 7
How. 1, 42, that this guaranty is enforceable only by Congress or the Chief
Executive is not maintainable. Of course
the Chief Executive, not the Court, determines how a State will be protected
against invasion. Of course each House
of Congress, not the Court, is "the Judge of the Elections, Returns, and
Qualifications of its own Members." Article I, Section 5, Clause 1. But the abdication of all judicial functions
respecting voting rights (7 How., at 41), however justified by the peculiarities
of the charter form of government in Rhode Island at the time of Dorr's
Rebellion, states no general principle.
It indeed is contrary to the cases discussed in the body of this opinion
-- the modern decisions of the Court that give the full panoply of judicial
protection to voting rights. Today we
would not say with Chief Justice Taney that it is no part of the judicial
function to protect the right to vote of those "to whom it is denied by
the written and established constitution and laws of the State." Ibid.
Moreover, the Court's refusal to examine the legality
of the regime of martial law which had been laid upon Rhode Island ( id.,
at 45-46) is indefensible, as Mr. Justice Woodbury maintained in his
dissent. Id., at 59 et seq. Today we would ask with him: ". . . who
could hold for a moment, when the writ of habeas corpus cannot be suspended by
the legislature itself, either in the general government or most of the States,
without an express constitutional permission, that all other writs and laws
could be suspended, and martial law substituted for them over the whole State
or country, without any express constitutional license to that effect, in any
emergency?" Id., at 67.
Justice Woodbury went on to say:
"It would be alarming enough to sanction here an
unlimited power, exercised either by legislatures, or the executive, or courts,
when all our governments are themselves governments of limitations and checks,
and of fixed and known laws, and the people a race above all others jealous of
encroachments by those in power. And it
is far better that those persons should be without the protection of the
ordinary laws of the land who disregard them in an emergency, and should look
to a grateful country for indemnity and pardon, than to allow, beforehand, the
whole frame of jurisprudence to be overturned, and every thing placed at the
mercy of the bayonet.
"No tribunal or department in our system of
governments ever can be lawfully authorized to dispense with the laws, like
some of the tyrannical Stuarts, or to repeal, or abolish, or suspend the whole
body of them; or, in other words, appoint an unrestrained military dictator at
the head of armed men.
"Whatever stretches of such power may be ventured
on in great crises, they cannot be upheld by the laws, as they prostrate the
laws and ride triumphant over and beyond them, however the Assembly of Rhode
Island, under the exigency, may have hastily supposed that such a measure in
this instance was constitutional. It is
but a branch of the omnipotence claimed by Parliament to pass bills of
attainder, belonging to the same dangerous and arbitrary family with martial
law." Id., at 69-70.
What he wrote was later to become the tradition, as
expressed by Chief Justice Hughes in Sterling v. Constantin, 287
U.S. 378, 401: "What are the allowable limits of military discretion, and
whether or not they have been overstepped in a particular case, are judicial
questions."
Race, color, or previous condition
of servitude is an impermissible standard by reason of the Fifteenth Amendment,
and that alone is sufficient to explain Gomillion v. Lightfoot,
364 U.S. 339. See Taper, Gomillion versus Lightfoot (1962), pp. 12-17.
Sex is another impermissible
standard by reason of the Nineteenth Amendment.
[***HR32] There is a third barrier to a State's freedom
in prescribing qualifications of voters and that is the Equal Protection Clause
of the Fourteenth Amendment, the provision invoked here. And so the question is, may a State weight
the vote of one county or one district more heavily than it weights the vote in
another?
The traditional test under
the [***702] Equal Protection Clause has been whether a
State has made "an invidious discrimination," as it does when it
selects "a particular race or nationality for oppressive treatment."
See Skinner v. Oklahoma, 316 U.S. 535, 541. Universal equality is
not [*245] the test; there is room for weighting. As we stated in Williamson v. Lee
Optical Co., 348 U.S. 483, 489, "The prohibition of the Equal
Protection Clause goes no further than the invidious discrimination."
[***HR33A]
I agree with my Brother CLARK that
if the allegations in the complaint can
[**725] be sustained a case for
relief is established. We are told that
a single vote in Moore County, Tennessee, is worth 19 votes in Hamilton County,
that one vote in Stewart or in Chester County is worth nearly eight times a
single vote in Shelby or Knox County.
The opportunity to prove that an "invidious discrimination"
exists should therefore be given the appellants.
It is said that any decision in
cases of this kind is beyond the competence of courts. Some make the same point as regards the
problem of equal protection in cases involving racial segregation. Yet the legality of claims and conduct is a
traditional subject for judicial determination.
Adjudication is often perplexing and complicated. An example of the extreme complexity of the
task can be seen in a decree apportioning water among the several States. Nebraska v. Wyoming, 325 U.S.
589, 665. The constitutional guide is often vague, as the decisions under the
Due Process and Commerce Clauses show.
The problem under the Equal Protection Clause is no more intricate. See Lewis, Legislative Apportionment and the
Federal Courts, 71 Harv. L. Rev. 1057, 1083-1084.
There are, of course, some
questions beyond judicial competence.
Where the performance of a "duty" is left to the discretion
and good judgment of an executive officer, the judiciary will not compel the
exercise of his discretion one way or the other ( Kentucky v. Dennison,
24 How. 66, 109), for to do so would be to take over the office. Cf. Federal
Communications Comm'n v. Broadcasting Co., 309 U.S. 134, 145.
[*246]
Where the Constitution assigns a particular function wholly and
indivisibly n3 [**726] to another department, the [***703]
federal judiciary does not intervene.
Oetjen v. Central Leather Co., 246 U.S. 297, 302. None of
those cases is relevant here.
n3 The category of the "political" question
is, in my view, narrower than the decided cases indicate. "Even the English courts have held that
a resolution of one House of Parliament does not change the law ( Stockdale
v. Hansard (1839), 9 A. & E. 1; and Bowles v. Bank of
England (No. 2) [1913] 1 Ch. 57), and these decisions imply that the House
of Commons acting alone does not constitute the 'Parliament' recognised by the
English courts." 103 Sol. Jour. 995, 996.
The Court in Bowles v. Bank of England, [1913] 1 Ch. 57,
84-85, stated: "By the statute 1 W. & M., usually known as the Bill of
Rights, it was finally settled that there could be no taxation in this country
except under authority of an Act of Parliament.
The Bill of Rights still remains unrepealed, and no practice or custom,
however prolonged, or however acquiesced in on the part of the subject, can be
relied on by the Crown as justifying any infringement of its provisions. It follows that, with regard to the powers of
the Crown to levy taxation, no resolution, either of the Committee for Ways and
Means or of the House itself, has any legal effect whatever. Such resolutions are necessitated by a
parliamentary procedure adopted with a view to the protection of the subject
against the hasty imposition of taxes, and it would be strange to find them
relied on as justifying the Crown in levying a tax before such tax is actually
imposed by Act of Parliament."
In The Pocket Veto Case, 279 U.S. 655, the
Court undertook a review of the veto provisions of the Constitution and
concluded that the measure in litigation had not become a law. Cf. Coleman
v. Miller, 307 U.S. 433.
Georgia
v. Stanton, 6 Wall. 50, involved the application of the Reconstruction
Acts to Georgia -- laws which destroyed by force the internal regime of that
State. Yet the Court refused to take
jurisdiction. That question was no more
"political" than a host of others we have entertained. See, e. g., Pennsylvania v. West
Virginia, 262 U.S. 553; Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579; Alabama v. Texas, 347 U.S. 272.
Today would this Court hold nonjusticiable or
"political" a suit to enjoin a Governor who, like Fidel Castro, takes
everything into his own hands and suspends all election laws?
Georgia
v. Stanton, supra, expresses a philosophy at war with Ex parte Milligan,
4 Wall. 2, and Duncan v. Kahanamoku, 327 U.S. 304. The dominance
of the civilian authority has been expressed from the beginning. See Wise v. Withers, 3 Cranch
331, 337; Sterling v. Constantin, supra, note 2.
[*247]
There is no doubt that the federal courts have jurisdiction of
controversies concerning voting rights.
The Civil Rights Act gives them authority to redress the deprivation
"under color of any State law" of any "right, privilege or immunity
secured by the Constitution of the United States or by any Act of Congress
providing for equal rights of citizens . . . ." 28 U. S. C. § 1343 (3).
And 28 U. S. C. § 1343 (4) gives
the federal courts authority to award damages or issue an injunction to redress
the violation of "any Act of Congress providing for the protection of
civil rights, including the right to vote." (Italics added.) The
element of state action covers a wide range.
For as stated in United States v. Classic, 313 U.S. 299,
326:
"Misuse of power, possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority of state law,
is action taken 'under color of' state law." And see Monroe v. Pape,
365 U.S. 167.
The right to vote in both federal
and state elections was protected by the judiciary long before that right
received the explicit protection it is now accorded by § 1343 (4).
Discrimination against a voter on account of race has been penalized ( Ex
parte Yarbrough, 110 U.S. 651) or struck down. Nixon v. Herndon, 273 U.S. 536;
Smith v. Allwright, 321 U.S. 649; Terry v. Adams,
345 U.S. 461. Fraudulent acts that dilute the votes of some [*248]
have long been held to be within judicial cognizance. Ex parte Siebold, 100 U.S. 371. The
"right to have one's vote counted" whatever his race or nationality
or creed was held in United States v. Mosley, 238 U.S. 383, 386,
to be "as open to protection by Congress as the right to put a ballot in a
box." See also United States v. Classic, supra, 324-325; United
States v. Saylor, 322 U.S. 385.
Chief Justice Holt stated in Ashby
v. White, 2 Ld. Raym. 938, 956 (a
[***704] suit in which damages
were awarded against election officials for not accepting the plaintiff's vote,
3 Ld. Raym. 320) that:
"To allow this action will make publick officers more careful to
observe the constitution of cities and boroughs, and not to be so partial as
they commonly are in all elections, which is indeed a great and growing
mischief, and tends to the prejudice of the peace of the nation."
The same prophylactic effect will
be produced here, as entrenched political regimes make other relief as illusory
in this case as a petition to Parliament in Ashby v. White would
have been. n4
n4 We are told by the National Institute of Municipal
Law Officers in an amicus brief:
"Regardless of the fact that in the last two
decades the United States has become a predominantly urban country where well
over two-thirds of the population now lives in cities or suburbs, political
representation in the majority of state legislatures is 50 or more years behind
the times. Apportionments made when the
greater part of the population was located in rural communities are still
determining and undermining our elections.
"As a consequence, the municipality of 1960 is
forced to function in a horse and buggy environment where there is little
political recognition of the heavy demands of an urban population. These demands will become even greater by
1970 when some 150 million people will be living in urban areas.
"The National Institute of Municipal Law Officers
has for many years recognized the wide-spread complaint that by far the
greatest preponderance of state representatives and senators are from rural
areas which, in the main, fail to become vitally interested in the increasing
difficulties now facing urban administrators.
"Since World War II, the explosion in city and
suburban population has created intense local problems in education,
transportation, and housing. Adequate
handling of these problems has not been possible to a large extent, due chiefly
to the political weakness of municipalities.
This situation is directly attributable to considerable
under-representation of cities in the legislatures of most states." Amicus
brief, pp. 2-3.
[*249]
Intrusion of the Federal Government into the election machinery of the
States [**727] has taken numerous forms -- investigations ( Hannah
v. Larche, 363 U.S. 420); criminal proceedings ( Ex parte Siebold,
supra; Ex parte Yarbrough, supra; United States v. Mosley, supra; United
States v. Classic, supra); collection of penalties ( Smith v.
Allwright, supra); suits for declaratory relief and for an injunction ( Terry
v. Adams, supra); suits by the United States under the Civil Rights Act
to enjoin discriminatory practices. United
States v. Raines, 362 U.S. 17.
As stated by Judge McLaughlin in Dyer
v. Kazuhisa Abe, 138 F.Supp. 220, 236 (an apportionment case in Hawaii
which was reversed and dismissed as moot, 256 F.2d 728):
"The whole thrust of today's legal climate is to end
unconstitutional discrimination. It is
ludicrous to preclude judicial relief when a mainspring of representative
government is impaired. Legislators have
no immunity from the Constitution. The
legislatures of our land should be made as responsive to the Constitution of
the United States as are the citizens who elect the legislators."
With the exceptions of Colegrove
v. Green, 328 U.S. 549; MacDougall v. Green, 335 U.S. 281;
South v. Peters, 339 U.S. 276, and the decisions they spawned,
the Court has never thought that protection of voting [***705]
rights [*250] was beyond judicial cognizance. Today's treatment of those cases removes the
only impediment to judicial cognizance of the claims stated in the present
complaint.
The justiciability of the present
claims being established, any relief accorded can be fashioned in the light of
well-known principles of equity. n5
[***HR34]
n5 The recent ruling by the Iowa Supreme Court that a
legislature, though elected under an unfair apportionment scheme, is
nonetheless a legislature empowered to act ( Cedar Rapids v. Cox,
252 Iowa 948, 964, 108 N. W. 2d 253, 262-263; cf. Kidd v. McCanless, 200 Tenn.
273, 292 S. W. 2d 40) is plainly correct.
There need be no fear of a more disastrous collision
between federal and state agencies here than where a federal court enjoins
gerrymandering based on racial lines.
See Gomillion v. Lightfoot, supra.
The District Court need not undertake a complete
reapportionment. It might possibly achieve the goal of substantial equality
merely by directing respondent to eliminate the egregious injustices. Or its conclusion that reapportionment should
be made may in itself stimulate legislative action. That was the result in Asbury Park Press
v. Woolley, 33 N. J. 1, 161 A. 2d 705, where the state court ruled it
had jurisdiction:
"If by reason of passage of time and changing
conditions the reapportionment statute no longer serves its original purpose of
securing to the voter the full constitutional value of his franchise, and the
legislative branch fails to take appropriate restorative action, the doors of
the courts must be open to him. The
law-making body cannot by inaction alter the constitutional system under which
it has its own existence." 33 N. J., at 14, 161 A. 2d, at 711. The court
withheld its decision on the merits in order that the legislature might have an
opportunity to consider adoption of a reapportionment act. For the sequel see Application of Lamb,
67 N. J. Super. 39, 46-47, 169 A. 2d 822, 825-826.
Reapportionment was also the result in Magraw
v. Donovan, 159 F.Supp. 901, where a federal three-judge District Court
took jurisdiction, saying, 163 F.Supp. 184, 187:
"Here it is the unmistakable duty of the State
Legislature to reapportion itself periodically in accordance with recent
population changes. . . . Early in
January 1959 the 61st Session of the Minnesota Legislature will convene, all of
the members of which will be newly elected on November 4th of this year. The facts which have been presented to us
will be available to them. It is not to
be presumed that the Legislature will refuse to take such action as is
necessary to comply with its duty under the State Constitution. We defer decision on all the issues presented
(including that of the power of this Court to grant relief), in order to afford
the Legislature full opportunity to 'heed the constitutional mandate to
redistrict.'"
See 177 F.Supp. 803, where the case was dismissed as
moot, the State Legislature having acted.
[*251]
MR. JUSTICE CLARK, concurring.
[***HR33B]
One emerging from the rash of
opinions with their accompanying clashing
[**728] of views may well find
himself suffering a mental blindness.
The Court holds that the appellants have alleged a cause of action. However, it refuses to award relief here --
although the facts are undisputed -- and fails to give the District Court any
guidance whatever. One dissenting
opinion, bursting with words that go through so much and conclude with so
little, contemns the majority action as "a massive repudiation of the
experience of our whole past." Another describes the complaint as merely
asserting conclusory allegations that Tennessee's apportionment is
"incorrect," "arbitrary," "obsolete," and
"unconstitutional." I believe it can be shown that this case is
distinguishable from earlier cases dealing with the distribution of political power
by a State, that a patent violation of the Equal Protection Clause of the
United States Constitution has been
[***706] shown, and that an
appropriate remedy may be formulated.
I.
I take the law of the case from MacDougall
v. Green, 335 U.S. 281 (1948), which involved an attack under the Equal
Protection Clause upon an Illinois election statute. The Court decided that case on its merits
without hindrance from the "political question" doctrine. Although the statute under attack was upheld,
it is clear [*252] that the Court based its decision upon the
determination that the statute represented a rational state policy. It stated:
"It would be strange indeed, and doctrinaire, for this Court,
applying such broad constitutional concepts as due process and equal protection
of the laws, to deny a State the power to assure a proper diffusion of
political initiative as between its thinly populated counties and those having
concentrated masses, in view of the fact that the latter have practical
opportunities for exerting their political weight at the polls not available to
the former." Id., at 284. (Emphasis supplied.)
The other cases upon which my
Brethren dwell are all distinguishable or inapposite. The widely heralded case of Colegrove
v. Green, 328 U.S. 549 (1946), was one not only in which the Court was
bobtailed but in which there was no majority opinion. Indeed, even the "political
question" point in MR. JUSTICE FRANKFURTER'S opinion was no more than an
alternative ground. n1 Moreover, the
appellants did not present an equal protection
[**729] argument. n2 While it has
served as a Mother Hubbard to most of the subsequent cases, I feel it was in
that respect illcast and for all of these reasons put it to one side. n3
Likewise, [*253] I do not consider the Guaranty Clause cases
based on Art. I, § 4, of the
Constitution, because it is not invoked here and it involves different
criteria, as the Court's opinion indicates.
Cases resting on various other considerations not present here, such as Radford
v. Gary, 352 U.S. 991 (1957) (lack of equity); Kidd v. McCanless,
352 U.S. 920 (1956) (adequate state grounds supporting the state judgment); Anderson
v. Jordan, 343 U.S. 912 (1952) (adequate state grounds); Remmey
v. Smith, 342 U.S. 916 (1952) (failure to exhaust state procedures), are
of course not controlling. Finally, the
Georgia county-unit-system cases, such as South v. Peters, 339
U.S. 276 (1950), reflect the viewpoint of MacDougall, i. e.,
to refrain from intervening where there is some rational policy behind the
State's system. n4
n1 The opinion stated at 551 that the Court
"could also dispose of this case on the authority of Wood v. Broom
[287 U.S. 1 (1932)]." Wood v. Broom involved only the
interpretation of a congressional reapportionment Act.
n2 Similarly, the Equal Protection Clause was not
invoked in Tedesco v. Board of Supervisors, 339 U.S. 940 (1950).
n3 I do not read the later case of Colegrove v.
Barrett, 330 U.S. 804 (1947), as having rejected the equal protection
argument adopted here. That was merely a
dismissal of an appeal where the equal protection point was mentioned along
with attacks under three other constitutional provisions, two congressional
Acts, and three state constitutional provisions.
n4 Georgia based its election system on a consistent
combination of political units and population, giving six unit votes to the
eight most populous counties, four unit votes to the 30 counties next in
population, and two unit votes to each of the remaining counties.
II.
[***707]
The controlling facts cannot be disputed. It appears from the record that 37% of the
voters of Tennessee elect 20 of the 33 Senators while 40% of the voters elect
63 of the 99 members of the House. But
this might not on its face be an "invidious discrimination," Williamson
v. Lee Optical of Oklahoma, 348 U.S. 483, 489 (1955), for a
"statutory discrimination will not be set aside if any state of facts
reasonably may be conceived to justify it." McGowan v. Maryland,
366 U.S. 420, 426 (1961).
It is true that the apportionment
policy incorporated in Tennessee's Constitution, i. e., state-wide
numerical equality of representation with certain minor qualifications, n5 is a
rational one. On a county-by-county
comparison [*254] a districting plan based thereon naturally
will have disparities in representation due to the qualifications. But this to
my mind does not raise constitutional problems, for the overall policy is
reasonable. However, the root of the
trouble is not in Tennessee's Constitution, for admittedly its policy has not
been followed. The discrimination lies
in the action of Tennessee's Assembly in allocating legislative seats to
counties or districts created by it. Try
as one may, Tennessee's apportionment just cannot be made to fit the pattern
cut by its Constitution. This was the
finding of the District Court. The
policy of the Constitution referred to by the dissenters, therefore, is of no
relevance here. We must examine what the
Assembly has done. n6 The frequency and magnitude of the inequalities in the
present districting admit of no policy whatever. [**730]
An examination of Table I accompanying this opinion, post, p.
262, conclusively reveals that the apportionment picture in Tennessee is a
topsy-turvical of gigantic proportions.
This is not to say that some of the disparity cannot be explained, but
when the entire table is examined -- comparing the voting strength of counties
of like population as well as contrasting that of the smaller with the larger
counties -- it leaves but one conclusion, namely that Tennessee's apportionment
is a crazy quilt without rational basis.
At the risk of being accused of picking out a few of the horribles I
shall allude to a series of examples that are taken from Table I.
n5 See Part I of the Appendix to MR. JUSTICE HARLAN's
dissent, post, p. 341.
n6 It is suggested that the districting is not
unconstitutional since it was established by a statute that was constitutional
when passed some 60 years ago. But many
Assembly Sessions since that time have deliberately refused to change the
original act, and in any event "[a] statute [constitutionally] valid when
enacted may become invalid by change in the conditions to which it is
applied." Nashville, C. & St. L. R. Co. v. Walters, 294
U.S. 405, 415 (1935).
As is admitted, there is a wide
disparity of voting strength between the large and small counties. Some
[*255] samples are: Moore County
has a total representation of two n7 with a population (2,340) of only
one-eleventh [***708] of Rutherford County (25,316) with the same
representation; Decatur County (5,563) has the same representation as Carter
(23,303) though the latter has four times the population; likewise, Loudon
County (13,264), Houston (3,084), and Anderson County (33,990) have the same
representation, i. e., 1.25 each.
But it is said that in this illustration all of the under-represented
counties contain municipalities of over 10,000 population and they therefore
should be included under the "urban" classification, rationalizing
this disparity as an attempt to effect a rural-urban political balance. But in so doing one is caught up in the
backlash of his own bull whip, for many counties have municipalities with a
population exceeding 10,000, yet the same invidious discrimination is
present. For example:
|
County |
Population |
Representation |
|
Carter |
23,303 |
1.10 |
|
Maury |
24,556 |
2.25 |
|
Washington |
36,967 |
1.93 |
|
Madison |
37,245 |
3.50 |
[*256] Likewise, counties with no municipality of
over 10,000 suffer a similar discrimination:
|
County |
Population |
Representation |
|
Grundy |
6,540 |
0.95 |
|
Chester |
6,391 |
2.00 |
|
Cumberland |
9,593 |
0.63 |
|
Crockett |
9,676 |
2.00 |
|
Loudon |
13,264 |
1.25 |
|
Fayette |
13,577 |
2.50 |
[**731] This could not be an effort to attain
political balance between rural and urban populations. Since discrimination is present among
counties of like population, the plan is neither consistent nor rational. It discriminates horizontally creating gross
disparities between rural areas themselves as well as between urban areas
themselves, n8 still maintaining the wide vertical disparity already pointed
out between rural and urban.
n7 "Total representation" indicates the
combined representation in the State Senate (33 members) and the State House of
Representatives (99 members) in the Assembly of Tennessee. Assuming a county has one representative, it
is credited in this calculation with 1/99.
Likewise, if the same county has one-third of a senate seat, it is
credited with another 1/99, and thus such a county, in our calculation, would
have a "total representation" of two; if a county has one
representative and one-sixth of a senate seat, it is credited with 1.5/99, or
1.50. It is this last figure that I use
here in an effort to make the comparisons clear. The 1950 rather than the 1960 census of
voting population is used to avoid the charge that use of 1960 tabulations
might not have allowed sufficient time for the State to act. However, the 1960 picture is even more
irrational than the 1950 one.
n8 Of course this was not the case in the Georgia
county unit system, South v. Peters, supra, or the Illinois
initiative plan, MacDougall v. Green, supra, where recognized
political units having independent significance were given minimum political
weight.
It is also insisted that the
representation formula used above (see n. 7) is "patently deficient"
because "it eliminates from consideration the relative voting power of the
counties that are joined together in a single election district." This is
a strange claim coming from those who rely on the proposition that "the
voice of every voter" need not have "approximate equality." Indeed,
representative government, as they say, is not necessarily one of "bare
numbers." The use of floterial districts in our political system is not
ordinarily based on the theory that the floterial representative is splintered
among the counties of his district per relative population. His function is to represent the whole
district. However, I shall meet the
charge on its own ground and by use of its "adjusted [*257]
'total representation'" formula show that the present apportionment
is loco. For example, compare some
"urban" areas of like population, using the HARLAN formula:
|
County |
Population |
Representation |
|
Washington |
36,967 |
2.65 |
|
Madison |
37,245 |
4.87 |
|
Carter |
23,303 |
1.48 |
|
Greene |
23,649 |
2.05 |
|
Maury |
24,556 |
3.81 |
|
Coffee |
13,406 |
2.32 |
|
Hamblen |
14,090 |
1.07 |
[***709] And now, using the same formula, compare some
so-called "rural" areas of like population:
|
County |
Population |
Representation |
|
Moore |
2,340 |
1.23 |
|
Pickett |
2,565 |
.22 |
|
Stewart |
5,238 |
1.60 |
|
Cheatham |
5,263 |
.74 |
|
Chester |
6,391 |
1.36 |
|
Grundy |
6,540 |
.69 |
|
Smith |
8,731 |
2.04 |
|
Unicoi |
8,787 |
0.40
|
And for counties with similar representation but with gross differences
in population, take:
|
County |
Population |
Representation |
|
Sullivan |
55,712 |
4.07 |
|
Maury |
24,556 |
3.81 |
|
Blount |
30,353 |
2.12 |
|
Coffee |
13,406 |
2.32 |
[**732] These cannot be "distorted
effects," for here the same formula proposed by the dissenters is used and
the result is even "a crazier" quilt.
[*258]
The truth is that -- although this case has been here for two years and
has had over six hours' argument (three times the ordinary case) and has been
most carefully considered over and over again by us in Conference and
individually -- no one, not even the State nor the dissenters, has come up with
any rational basis for Tennessee's apportionment statute.
No one -- except the dissenters
advocating the HARLAN "adjusted 'total representation'" formula --
contends that mathematical equality among voters is required by the Equal
Protection Clause. But certainly there must be some rational design to a State's
districting. The discrimination here
does not fit any pattern -- as I have said, it is but a crazy quilt. My Brother HARLAN contends that other
proposed apportionment plans contain disparities. Instead of chasing those
rabbits he should first pause long enough to meet appellants' proof of
discrimination by showing that in fact the present plan follows a rational
policy. Not being able to do this, he
merely counters with such generalities as "classic legislative
judgment," no "significant discrepancy," and "de minimis
departures." I submit that even a casual glance at the present
apportionment picture shows these conclusions to be entirely fanciful. If present representation has a policy at
all, it is to maintain the status quo of invidious discrimination at any
cost. Like the District Court, I
conclude that appellants have met the burden of showing "Tennessee is
guilty of a clear violation of the state constitution and of the [federal]
rights of the plaintiffs. . . ."
III.
Although I find the Tennessee
apportionment statute offends the Equal Protection Clause, I would not consider
intervention by this Court into so delicate a field if there were any other
relief available to the people of Tennessee.
But the majority of the people of Tennessee have no [*259]
"practical opportunities for exerting their political weight at the
polls" to correct the existing "invidious discrimination."
Tennessee has no initiative and referendum.
I have searched diligently for other "practical opportunities"
present under [***710] the law.
I find none other than through the federal courts. The majority of the voters have been caught
up in a legislative strait jacket.
Tennessee has an "informed, civically militant electorate" and
"an aroused popular conscience," but it does not sear "the
conscience of the people's representatives." This is because the
legislative policy has riveted the present seats in the Assembly to their
respective constituencies, and by the votes of their incumbents a
reapportionment of any kind [**733] is prevented.
The people have been rebuffed at the hands of the Assembly; they have
tried the constitutional convention route, but since the call must originate in
the Assembly it, too, has been fruitless.
They have tried Tennessee courts with the same result, n9 and Governors
have fought the tide only to flounder.
It is said that there is recourse in Congress and perhaps that may be,
but from a practical standpoint this is without substance. To date Congress has never undertaken such a
task in any State. We therefore must
conclude that the people of Tennessee are stymied and without judicial
intervention will be saddled with the present discrimination in the affairs of
their state government.
n9 It is interesting to note that state judges often
rest their decisions on the ground that this Court has precluded adjudication
of the federal claim. See, e. g.,
Scholle v. Secretary of State, 360 Mich. 1, 104 N. W. 2d 63 (1960).
IV.
Finally, we must consider if there
are any appropriate modes of effective judicial relief. The federal courts are of course not forums
for political debate, nor should they
[*260] resolve themselves into state
constitutional conventions or legislative assemblies. Nor should their jurisdiction be exercised in
the hope that such a declaration as is made today may have the direct effect of
bringing on legislative action and relieving the courts of the problem of
fashioning relief. To my mind this would
be nothing less than blackjacking the Assembly into reapportioning the
State. If judicial competence were
lacking to fashion an effective decree, I would dismiss this appeal. However, like the Solicitor General of the
United States, I see no such difficulty in the position of this case. One plan might be to start with the existing
assembly districts, consolidate some of them, and award the seats thus released
to those counties suffering the most egregious discrimination. Other possibilities are present and might be
more effective. But the plan here
suggested would at least release the strangle hold now on the Assembly and
permit it to redistrict itself.
In this regard the appellants have
proposed a plan based on the rationale of state-wide equal representation. Not believing that numerical equality of
representation throughout a State is constitutionally required, I would not
apply such a standard albeit a permissive one.
Nevertheless, the dissenters attack it by the application of the HARLAN
"adjusted 'total representation'" formula. The result is that some
isolated inequalities are shown, but this in itself does not make the proposed
plan irrational or place it in the "crazy quilt" category. Such inequalities, as the dissenters point
out in attempting to support the present apportionment as rational, are
explainable. Moreover, there is no
requirement that any plan have mathematical exactness in its application. Only where, as here, the total picture
reveals incommensurables [***711] of both magnitude and frequency can it be
said that there is present an invidious discrimination.
[*261]
In view of the detailed study that the Court has given this problem, it
is unfortunate that a decision is not reached on the merits. The majority appears to hold, at least sub
silentio, that an invidious discrimination is present, but it remands to
the three-judge court for it to make what is certain to be that formal
determination. It is true that Tennessee
has not filed a formal answer. However,
it has filed voluminous papers and made extended arguments supporting its
position. At no time has it been able to
contradict the appellants' factual claims; it has offered no rational
explanation for the present apportionment; indeed, it has indicated that there
are none known to it. As I have
emphasized, the case proceeded to the point before the three-judge court that
it was able to find an invidious discrimination factually [**734]
present, and the State has not contested that holding here. In view of all this background I doubt if
anything more can be offered or will be gained by the State on remand, other
than time. Nevertheless, not being able
to muster a court to dispose of the case on the merits, I concur in the opinion
of the majority and acquiesce in the decision to remand. However, in fairness I do think that
Tennessee is entitled to have my idea of what it faces on the record before us
and the trial court some light as to how it might proceed.
As John Rutledge (later Chief
Justice) said 175 years ago in the course of the Constitutional Convention, a
chief function of the Court is to secure the national rights. n10 Its decision
today supports the proposition for which our forebears fought and many died,
namely, that to be fully conformable to the principle of right, the form of
government must be representative. n11 That is the keystone upon which our
government was founded [*262] and lacking which no republic can
survive. It is well for this Court to
practice self-restraint and discipline in constitutional adjudication, but
never in its history have those principles received sanction where the national
rights of so many have been so clearly infringed for so long a time. National respect for the courts is more
enhanced through the forthright enforcement of those rights rather than by rendering
them nugatory through the interposition of subterfuges. In my view the ultimate decision today is in
the greatest tradition of this Court.
n10 1 Farrand, The Records of the Federal Convention
of 1787, 124.
n11 Kant, Perpetual Peace.
|
TABLE I. |
||||
|
|
|
Present
total |
Present
total |
Proposed
total |
|
|
|
representation |
representation |
representation |
|
|
|
using |
using |
(appellants'
plan), |
|
|
1950 |
J.
Clark's |
J.
Harlan's |
using
J. Harlan's |
|
|
population |
formula |
formula |
formula |
|
Van
Buren |
2,039 |
.63 |
.23 |
.11 |
|
Moore |
2,340 |
2.00 |
1.23 |
.18 |
|
Pickett |
2,565 |
.70 |
.22 |
.24 |
|
Sequatchie |
2,904 |
.63 |
.33 |
.19 |
|
Meigs |
3,039 |
.93 |
.48 |
.17 |
|
Houston |
3,084 |
1.25 |
.46 |
.24 |
|
Trousdale |
3,351 |
1.33 |
.43 |
.12 |
|
Lewis |
3,413 |
1.25 |
.39 |
.25 |
|
Perry |
3,711 |
1.50 |
.71 |
.40 |
|
Bledsoe |
4,198 |
.63 |
.49 |
.24 |
|
Clay |
4,528 |
.70 |
.40 |
.42 |
|
Union |
4,600 |
.76 |
.37 |
.45 |
|
Hancock |
4,710 |
.93 |
.62 |
.49 |
|
Stewart |
5,238 |
1.75 |
1.60 |
.41 |
|
Cheatham |
5,263 |
1.33 |
.72 |
.20 |
|
Cannon |
5,341 |
2.00 |
1.43 |
.52 |
|
Decatur |
5,563 |
1.10 |
.79 |
.52 |
|
Lake |
6,252 |
2.00 |
1.44 |
.41 |
|
Chester |
6,391 |
2.00 |
1.36 |
.19 |
|
Grundy |
6,540 |
.95 |
.69 |
.43 |
|
Humphreys |
6,588 |
1.25 |
1.39 |
.72 |
|
Johnson |
6,649 |
1.10 |
.42 |
.43 |
|
Jackson |
6,719 |
1.50 |
1.43 |
.63 |
|
De
Kalb |
6,984 |
2.00 |
1.56 |
.68 |
|
Benton |
7,023 |
1.10 |
1.01 |
.66 |
|
Fentress |
7,057 |
.70 |
.62 |
.64 |
|
Grainger |
7,125 |
.93 |
.94 |
.65 |
|
Wayne |
7,176 |
1.25 |
.69 |
.76 |
|
Polk |
7,330 |
1.25 |
.68 |
.73 |
|
Hickman |
7,598 |
2.00 |
1.85 |
.80 |
|
Macon |
7,974 |
1.33 |
1.01 |
.61 |
|
Morgan |
8,308 |
.93 |
.59 |
.75 |
|
Scott |
8,417 |
.76 |
.68 |
.62 |
|
Smith |
8,731 |
2.50 |
2.04 |
.67 |
|
Unicoi |
8,787 |
.93 |
.40 |
.63 |
|
Rhea |
8,937 |
.93 |
1.42 |
.21 |
|
White |
9,244 |
1.43 |
1.69 |
.90 |
|
Overton |
9,474 |
1.70 |
1.83 |
.89 |
|
Hardin |
9,577 |
1.60 |
1.61 |
.93 |
|
Cumberland |
9,593 |
.63 |
1.10 |
.87 |
|
Crockett |
9,676 |
2.00 |
1.66 |
.63 |
|
Henderson |
10,199 |
1.50 |
.78 |
.96 |
|
Marion |
10,998 |
1.75 |
1.73 |
.72 |
|
Marshall |
11,288 |
2.50 |
2.28 |
.84 |
|
Dickson |
11,294 |
1.75 |
2.29 |
1.23 |
|
Jeffer
son |
11,359 |
1.10 |
.87 |
1.03 |
|
McNairy |
11,601 |
1.60 |
1.74 |
1.13 |
|
Cocke |
12,572 |
1.60 |
1.46 |
.89 |
|
Sevier |
12,793 |
1.60 |
1.47 |
.69 |
|
Claiborne |
12,799 |
1.43 |
1.61 |
1.34 |
|
Monroe |
12,884 |
1.75 |
1.68 |
1.30 |
|
Loudon |
13,264 |
1.25 |
.28 |
.52 |
|
Warren |
13,337 |
1.75 |
1.89 |
1.68 |
|
Coffee |
13,406 |
2.00 |
2.32 |
1.68 |
|
Hardeman |
13,565 |
1.60 |
1.86 |
1.11 |
|
Fayette |
13,577 |
2.50 |
2.48 |
1.11 |
|
Haywood |
13,934 |
2.50 |
2.52 |
1.69 |
|
Williamson |
14,064 |
2.33 |
2.96 |
1.71 |
|
Hamblen |
14,090 |
1.10 |
1.07 |
1.67 |
|
Franklin |
14,297 |
1.75 |
1.95 |
1.73 |
|
Lauderdale |
14,413 |
2.50 |
2.45 |
1.73 |
|
Bedford |
14,732 |
2.00 |
1.45 |
1.74 |
|
Lincoln |
15,092 |
2.50 |
2.72 |
1.77 |
|
Henry |
15,465 |
2.83 |
2.76 |
1.73 |
|
Lawrence |
15,847 |
2.00 |
2.22 |
1.81 |
|
Giles |
15,935 |
2.25 |
2.54 |
1.81 |
|
Tipton |
15,944 |
3.00 |
1.68 |
1.13 |
|
Robertson |
16,456 |
2.83 |
2.62 |
1.85 |
|
Wilson |
16,459 |
3.00 |
3.03 |
1.21 |
|
Carroll |
16,472 |
2.83 |
2.88 |
1.82 |
|
Hawkins |
16,900 |
3.00 |
1.93 |
1.82 |
|
Putnam |
17,071 |
1.70 |
2.50 |
1.86 |
|
Campbell |
17,477 |
.76 |
1.40 |
1.94 |
|
Roane |
17,639 |
1.75 |
1.26 |
1.30 |
|
Weakley |
8,007 |
2.33 |
2.63 |
1.85 |
|
Bradley |
18,273 |
1.25 |
1.67 |
1.92 |
|
McMinn |
18,347 |
1.75 |
1.97 |
1.92 |
|
Obion |
18,434 |
2.00 |
2.30 |
1.94 |
|
Dyer |
20,062 |
2.00 |
2.36 |
2.32 |
|
Sumner |
20,143 |
2.33 |
3.56 |
2.54 |
|
Carter |
23,303 |
1.10 |
1.48 |
2.55 |
|
Greene |
23,649 |
1.93 |
2.05 |
2.68 |
|
Maury |
24,556 |
2.25 |
3.81 |
2.85 |
|
Rutherford |
25,316 |
2.00 |
3.02 |
2.39 |
|
Montgomery |
26,284 |
3.00 |
3.73 |
3.06 |
|
Gibson |
29,832 |
5.00 |
5.00 |
2.86 |
|
Blount |
30,353 |
1.60 |
2.12 |
2.19 |
|
Anderson |
33,990 |
1.25 |
1.30 |
3.62 |
|
Washington |
36,967 |
1.93 |
2.65 |
3.45 |
|
Madison |
37,245 |
3.50 |
4.87 |
3.69 |
|
Sullivan |
55,712 |
3.00 |
4.07 |
5.57 |
|
Hamilton |
131,971 |
6.00 |
6.00 |
15.09 |
|
Knox |
140,559 |
7.25 |
8.96 |
15.21 |
|
Davidson |
211,930 |
12.50 |
12.93 |
21.57 |
|
Shelby |
312,345 |
15.50 |
16.85 |
31.59 |
[*265]
[***713] [**736] MR. JUSTICE STEWART, concurring.
The separate writings of my
dissenting and concurring Brothers stray so far from the subject of today's
decision as to convey, I think, a distressingly inaccurate impression of what
the Court decides. For that reason, I
think it appropriate, in joining the opinion of the Court, to emphasize in a
few words what the opinion does and does not say.
The Court today decides three
things and no more: "(a) that the court possessed jurisdiction of the subject
matter; (b) that a justiciable cause of action is stated upon which appellants
would be entitled to appropriate relief; and (c) . . . that the appellants have
standing to challenge the Tennessee apportionment statutes." Ante,
pp. 197-198.
The complaint in this case asserts
that Tennessee's system of apportionment is utterly arbitrary -- without any
possible justification in rationality.
The District Court did not reach the merits of that claim, and this
Court quite properly expresses no view on the subject. Contrary to the suggestion of my Brother
HARLAN, the Court does not say or imply that "state legislatures must be
so structured as to reflect with approximate equality the voice of every
voter." [**737] Post, p. 332. The Court does not say or imply that there is
anything in the Federal Constitution "to prevent a State, acting not
irrationally, from choosing any electoral legislative structure it thinks best
suited to the interests, temper, and customs of its people." Post,
p. 334. And contrary to the suggestion
of my Brother DOUGLAS, the Court most assuredly does not decide the question,
"may a State weight [***714] the vote of one county or one district more heavily
than it weights the vote in another?" Ante, p. 244.
In MacDougall v. Green,
335 U.S. 281, the Court held that the Equal Protection Clause does not
"deny a State the power to assure a proper diffusion of political
initiative [*266] as between its thinly populated counties and
those having concentrated masses, in view of the fact that the latter have
practical opportunities for exerting their political weight at the polls not
available to the former." 335 U.S., at 284. In case after case arising
under the Equal Protection Clause the Court has said what it said again only
last Term -- that "the Fourteenth Amendment permits the States a wide
scope of discretion in enacting laws which affect some groups of citizens
differently than others." McGowan v. Maryland, 366 U.S. 420,
425. In case after case arising under that Clause we have also said that
"the burden of establishing the unconstitutionality of a statute rests on
him who assails it." Metropolitan Casualty Ins. Co. v. Brownell,
294 U.S. 580, 584.
Today's decision does not turn its
back on these settled precedents. I
repeat, the Court today decides only: (1) that the District Court possessed
jurisdiction of the subject matter; (2) that the complaint presents a
justiciable controversy; (3) that the appellants have standing. My Brother CLARK has made a convincing prima
facie showing that Tennessee's system of apportionment is in fact utterly
arbitrary -- without any possible justification in rationality. My Brother HARLAN has, with imagination and ingenuity,
hypothesized possibly rational bases for Tennessee's system. But the merits of this case are not before us
now. The defendants have not yet had an
opportunity to be heard in defense of the State's system of apportionment;
indeed, they have not yet even filed an answer to the complaint. As in other cases, the proper place for the
trial is in the trial court, not here.
DISSENTBY:
FRANKFURTER; HARLAN
DISSENT:
MR. JUSTICE FRANKFURTER, whom MR.
JUSTICE HARLAN joins, dissenting.
The Court today reverses a uniform
course of decision established by a dozen cases, including one by which the
very claim now sustained was unanimously rejected [*267]
only five years ago. The
impressive body of rulings thus cast aside reflected the equally uniform course
of our political history regarding the relationship between population and
legislative representation -- a wholly different matter from denial of the
franchise to individuals because of race, color, religion or sex. Such a massive repudiation of the experience
of our whole past in asserting destructively novel judicial power demands a
detailed analysis of the role of this Court in our constitutional scheme. Disregard of inherent limits in the effective
exercise of the Court's "judicial Power" not only presages the
futility of judicial intervention in the essentially political conflict of
forces by which the relation between population and representation has time out
of mind been and now is determined. It
may well impair the Court's position as the ultimate organ of "the supreme
Law of the Land" in that vast range of legal problems, often strongly
entangled in popular feeling, on which this Court must pronounce. The Court's authority -- possessed of neither
the purse nor the sword -- ultimately rests on sustained [***715]
public confidence in its moral sanction.
Such feeling must be [**738] nourished by the Court's complete detachment,
in fact and in appearance, from political entanglements and by abstention from
injecting itself into the clash of political forces in political settlements.
A hypothetical claim resting on
abstract assumptions is now for the first time made the basis for affording
illusory relief for a particular evil even though it foreshadows deeper and
more pervasive difficulties in consequence.
The claim is hypothetical and the assumptions are abstract because the
Court does not vouchsafe the lower courts -- state and federal -- guidelines
for formulating specific, definite, wholly unprecedented remedies for the
inevitable litigations that today's umbrageous disposition is bound to
stimulate in connection with politically motivated reapportionments in so many
States. In [*268]
such a setting, to promulgate jurisdiction in the abstract is
meaningless. It is as devoid of reality
as "a brooding omnipresence in the sky," for it conveys no intimation
what relief, if any, a District Court is capable of affording that would not
invite legislatures to play ducks and drakes with the judiciary. For this Court to direct the District Court to
enforce a claim to which the Court has over the years consistently found itself
required to deny legal enforcement and at the same time to find it necessary to
withhold any guidance to the lower court how to enforce this turnabout, new
legal claim, manifests an odd -- indeed an esoteric -- conception of judicial
propriety. One of the Court's supporting
opinions, as elucidated by commentary, unwittingly affords a disheartening
preview of the mathematical quagmire (apart from divers judicially inappropriate
and elusive determinants) into which this Court today catapults the lower
courts of the country without so much as adumbrating the basis for a legal
calculus as a means of extrication. Even
assuming the indispensable intellectual disinterestedness on the part of judges
in such matters, they do not have accepted legal standards or criteria or even
reliable analogies to draw upon for making judicial judgments. To charge courts with the task of
accommodating the incommensurable factors of policy that underlie these
mathematical puzzles is to attribute, however flatteringly, omnicompetence to
judges. The Framers of the Constitution
persistently rejected a proposal that embodied this assumption and Thomas
Jefferson never entertained it.
Recent legislation, creating a
district appropriately described as "an atrocity of ingenuity," is
not unique. Considering the gross
inequality among legislative electoral units within almost every State, the
Court naturally shrinks from asserting that in districting at least substantial
equality is a constitutional requirement enforceable [*269]
by courts. * Room continues to be allowed for [***716]
weighting. This of course implies
that geography, economics, urban-rural conflict, and all the other non-legal
factors which have throughout our history entered into political districting
are to some extent not to be ruled out in the
[**739] undefined vista now
opened up by review in the federal courts of state reapportionments. To some
extent -- aye, there's the rub. In effect,
today's decision empowers the courts of the country to devise what should
constitute the proper composition of the legislatures of the fifty States. If state courts should for one reason or
another find themselves unable to discharge this task, the duty of doing so is
put on the federal courts or on this Court, if State views do not satisfy this
Court's notion of what is proper districting.
* It is worth reminding that the problem of
legislative apportionment is not one dividing North and South. Indeed, in the present House of
Representatives, for example, Michigan's congressional districts are far less
representative of the numbers of inhabitants, according to the 1960 census,
than are Louisiana's. Michigan's
Sixteenth District, which is 93.1% urban, contains 802,994 persons and its
Twelfth, which is 47.6% urban, contains 177,431 -- one-fifth as many
persons. Louisiana's most populous
district, the Sixth, is 53.6% urban and contains 536,029 persons, and its least
populous, the Eighth, 36.7% urban, contains 263,850 -- nearly half. Gross disregard of any assumption that our
political system implies even approximation to the notion that individual votes
in the various districts within a State should have equal weight is as true, e.
g., of California, Illinois, and Ohio as it is of Georgia. See United States Department of Commerce,
Census Release, February 24, 1962, CB62-23.
We were soothingly told at the bar
of this Court that we need not worry about the kind of remedy a court could
effectively fashion once the abstract constitutional right to have courts pass
on a state-wide system of electoral districting is recognized as a matter of
judicial rhetoric, because legislatures would heed the Court's admonition. This is not only a euphoric hope. It implies a sorry [*270]
confession of judicial impotence in place of a frank acknowledgment that
there is not under our Constitution a judicial remedy for every political
mischief, for every undesirable exercise of legislative power. The Framers carefully and with deliberate
forethought refused so to enthrone the judiciary. In this situation, as in others of like
nature, appeal for relief does not belong here.
Appeal must be to an informed, civically militant electorate. In a democratic society like ours, relief
must come through an aroused popular conscience that sears the conscience of
the people's representatives. In any
event there is nothing judicially more unseemly nor more self-defeating than
for this Court to make in terrorem pronouncements, to indulge in merely
empty rhetoric, sounding a word of promise to the ear, sure to be disappointing
to the hope.
This is the latest in the series
of cases in which the Equal Protection and Due Process Clauses of the
Fourteenth Amendment have been invoked in federal courts as restrictions upon
the power of the States to allocate electoral weight among the voting
populations of their various geographical subdivisions. n1 The present action,
which [*271] comes here on appeal from an order [***717]
of a statutory three-judge District Court dismissing amended complaints
seeking declaratory and injunctive relief, challenges the provisions of Tenn.
Code Ann., 1955, § § 3-101 to 3-109,
which apportion state representative and senatorial seats among Tennessee's ninety-five
counties.
n1 See Wood v. Broom, 287 U.S. 1; Colegrove
v. Green, 328 U.S. 549, rehearing denied, 329 U.S. 825, motion for
reargument before the full bench denied, 329 U.S. 828; Cook v. Fortson,
329 U.S. 675, rehearing denied, 329 U.S. 829; Turman v. Duckworth,
329 U.S. 675, rehearing denied, 329 U.S. 829; Colegrove v. Barrett,
330 U.S. 804; MacDougall v. Green, 335 U.S. 281; South v. Peters,
339 U.S. 276; Tedesco v. Board of Supervisors, 339 U.S. 940; Remmey
v. Smith, 342 U.S. 916; Cox v. Peters, 342 U.S. 936,
rehearing denied, 343 U.S. 921; Anderson v. Jordan, 343 U.S. 912;
Kidd v. McCanless, 352 U.S. 920; Radford v. Gary,
352 U.S. 991; Hartsfield v. Sloan, 357 U.S. 916; Matthews
v. Handley, 361 U.S. 127; Perry v. Folsom, 144 F.Supp. 874
(D. C. N. D. Ala.); Magraw v. Donovan, 163 F.Supp. 184 (D. C. D.
Minn.); cf. Dyer v. Kazuhisa
Abe, 138 F.Supp. 220 (D. C. D. Hawaii).
And see Keogh v. Neely, 50 F.2d 685 (C. A. 7th Cir.).
The original plaintiffs, citizens
and qualified voters entitled to vote for members of the Tennessee Legislature
in the several counties in which they respectively [**740]
reside, bring this action in their own behalf and "on behalf of all
other voters in the State of Tennessee," or, as they alternatively assert,
"on behalf of all qualified voters of their respective counties, and
further, on behalf of all voters of the State of Tennessee who are similarly
situated." The cities of Knoxville and Chattanooga, and the Mayor of
Nashville -- on his own behalf as a qualified voter and, pursuant to an
authorizing resolution by the Nashville City Council, as a representative of
all the city's residents -- were permitted to intervene as parties plaintiff.
n2 The defendants are executive officials charged with statutory duties in
connection with state elections. n3
n2 Although the motion to intervene by the Mayor of
Nashville asserted an interest in the litigation in only a representative
capacity, the complaint which he subsequently filed set forth that he was a
qualified voter who also sued in his own behalf. The municipalities of Knoxville and
Chattanooga purport to represent their residents. Since the claims of the municipal intervenors
do not differ materially from those of the parties who sue as individual
voters, the Court need not now determine whether the municipalities are proper
parties to this proceeding. See, e.
g., Stewart v. Kansas City, 239 U.S. 14.
n3 The original complaint named as defendants
Tennessee's Secretary of State, Attorney General, Coordinator of Elections, and
the three members of the State Board of Elections, seeking to make the Board
members representatives of all the State's County Election Commissioners. The prayer in an intervening complaint by the
City of Knoxville, that the Commissioners of Elections of Knox County be added
as parties defendant seems not to have been acted on by the court below. Defendants moved to dismiss, inter alia,
on the ground of failure to join indispensable parties, and they argue in this
Court that only the County Election Commissioners of the ninety-five counties
are the effective administrators of Tennessee's elections laws, and that none
of the defendants have substantial duties in connection therewith. The District Court deferred ruling on this
ground of the motion. Inasmuch as it
involves questions of local law more appropriately decided by judges sitting in
Tennessee than by this Court, and since in any event the failure to join County
Election Commissioners in this action looking to prospective relief could be
corrected, if necessary, by amendment of the complaints, the issue does not
concern the Court on this appeal.
[*272]
The original plaintiffs' amended complaint avers, in substance, the
following. n4 The Constitution of the State of Tennessee declares that
"elections shall be free and equal," provides that no qualifications
other than age, citizenship and specified residence requirements shall be
attached to the right of suffrage, and prohibits denying to any person the suffrage
to which he is entitled except upon conviction of an infamous crime. Art. I, §
5; Art. IV, § 1. It requires an enumeration of qualified
voters within every term of ten years after 1871 and an apportionment of
representatives and senators among the several counties or districts according
to the number of qualified voters in each n5
[**741] at the time of each
decennial [*273] enumeration.
[***718] Art. II, § § 4, 5, 6.
Notwithstanding these provisions, the State Legislature has not
reapportioned itself since 1901. The
Reapportionment Act of that year, Tenn. Acts 1901, c. 122, now Tenn. Code Ann.,
1955, § § 3-101 to 3-109, n6 was
unconstitutional when enacted, because not preceded by the required enumeration
of qualified voters and because it allocated legislative seats arbitrarily,
unequally and discriminatorily, as measured by the 1900 federal census.
Moreover, irrespective of the question of its validity in 1901, it is asserted
that the Act became "unconstitutional and obsolete" in 1911 by virtue
of the decennial reapportionment requirement of the Tennessee
Constitution. Continuing a
"purposeful and systematic plan to discriminate against a geographical
class of persons," recent Tennessee Legislatures have failed, as did their
predecessors, to enact reapportionment legislation, although a number of bills
providing for reapportionment have been introduced. Because of population shifts since 1901, the
apportionment fixed by the Act of that year and still in effect is not
proportionate to population, denies to the counties in which the
plaintiffs [*274] live an additional number of representatives
to which they are entitled, and renders plaintiffs' votes "not as effective
as the votes of the voters residing in other senatorial and representative districts
. . . ." Plaintiffs "suffer a debasement of their votes by virtue of
the incorrect, arbitrary, obsolete and unconstitutional apportionment of the
General Assembly . . . ," and the totality of the malapportionment's
effect -- which permits a minority of about thirty-seven percent of the voting
population of the State to control twenty of the thirty-three members of
Tennessee's Senate, and a minority of forty percent of the voting population to
control sixty-three of the ninety-nine members of the House -- results in
"a distortion of the constitutional system" established by the
Federal and State Constitutions, prevents the General Assembly "from being
a body representative of the people of the State of Tennessee, . . ." and
is "contrary [***719] to the basic principle of representative
government . . . ," and "contrary to the philosophy of government in
the United States and all Anglo-Saxon jurisprudence . . . ."
n4 Jurisdiction is predicated upon R. S. § 1979, 42 U. S. C. § 1983, and 28 U. S. C. § 1343 (3).
n5 However, counties having two-thirds of the ratio
required for a Representative are entitled to seat one member in the House, and
there are certain geographical restrictions upon the formation of Senate
districts. The applicable provisions of
Article II of the Tennessee Constitution are:
"Sec. 4. Census. -- An enumeration of the
qualified voters, and an apportionment of the Representatives in the General
Assembly, shall be made in the year one thousand eight hundred and seventy-one,
and within every subsequent term of ten years."
"Sec. 5.
Apportionment of representatives. -- The number of Representatives
shall, at the several periods of making the enumeration, be apportioned among
the several counties or districts, according to the number of qualified voters
in each; and shall not exceed seventy-five, until the population of the State
shall be one million and a half, and shall never exceed ninety-nine; Provided
that any county having two-thirds of the ratio shall be entitled to one member."
"Sec. 6.
Apportionment of senators. -- The number of Senators shall, at the
several periods of making the enumeration, be apportioned among the several
counties or districts according to the number of qualified electors in each,
and shall not exceed one-third the number of representatives. In apportioning the Senators among the
different counties, the fraction that may be lost by any county or counties, in
the apportionment of members to the House of Representatives, shall be made up
to such county or counties in the Senate, as near as may be practicable. When a district is composed of two or more
counties, they shall be adjoining; and no county shall be divided in forming a
district."
n6 It is alleged that certain amendments to the Act of
1901 made only minor modifications of that Act, adjusting the boundaries of
individual districts in a manner not material to plaintiffs' claims.
Exhibits appended to the complaint
purport to demonstrate the extent of the inequalities of which plaintiffs
complain. Based upon "approximate
voting population," n7 these set forth figures showing [**742]
that the State [*275] Senator from Tennessee's most populous
senatorial district represents five and two-tenths times the number of voters
represented by the Senator from the least populous district, while the
corresponding ratio for most and least populous House districts is more than
eighteen to one. The General Assembly
thus apportioned has discriminated against the underrepresented counties and in
favor of the overrepresented counties in the collection and distribution of
various taxes and tax revenues, notably in the distribution of school and
highway-improvement funds, n8 this discrimination being "made possible and
effective" by the Legislature's failure to reapportion itself. Plaintiffs conclude that election of the
State Legislature pursuant to the apportionment fixed by the 1901 Act violates
the Tennessee Constitution and deprives them of due process of law and of the
equal protection of the laws guaranteed by the Fourteenth Amendment. Their
prayer below was for a declaratory judgment striking down the Act, an
injunction restraining defendants from any acts necessary to the holding of
elections in the districts prescribed by Tenn. Code Ann., 1955, § § 3-101 to 3-109, until such time as the
legislature is reapportioned "according to the [*276]
Constitution of the State of Tennessee," and an order directing
defendants to declare the next primary and general elections for members of the
Tennessee Legislature on an at-large basis -- the thirty-three senatorial
candidates and the ninety-nine representative candidates receiving the highest
number of votes to be declared elected. n9
n7 The exhibits do not reveal the source of the
population figures which they set forth, but it appears that the figures were
taken from the United States Census of Population, 1950, Volume II, Part 42
(Tennessee), Table 41, at 76-91. These
census figures represent the total population over twenty-one years of age in
each Tennessee county; they do not purport to enumerate "qualified
voters" or "qualified electors," the measure of apportionment
prescribed by the Tennessee Constitution.
See note 5, supra. To
qualify to vote in Tennessee, in addition to fulfilling the age requirement, an
individual must be a citizen of the United States, a resident of the State for
twelve months and of the county where he offers his vote for six months next
preceding the election, and must not be under the disqualification attaching to
conviction for certain offenses. Tenn.
Code Ann., 1955, § § 2-201, 2-205. The statistics found in the United States
Census of Population, 1950, Volume II, Part 42 (Tennessee), Table 42, at 92-97,
suggest that the residence requirement, in particular, may be an unknown variable
of considerable significance. Appellants
do not suggest a means by which a court, on the basis of the federal census
figures, can determine the number of qualified voters in the various Tennessee
counties.
n8 The "county aid funds" derived from a portion
of a state gasoline privilege tax, for example, are distributed among the
counties as follows: one-half equally among the ninety-five counties,
one-quarter on the basis of area, one-quarter on the basis of population, to be
used by county authorities in the building, repairing and improving of county
roads and bridges. Tenn. Code Ann.,
1955, § 54-403. Appellants urge that this distribution is
discriminatory.
n9 Plaintiffs also suggested, as an alternative to
at-large elections, that the District Court might itself redistrict the
State. They did not, however, expressly
pray such relief.
Motions to dismiss for want
of [***720] jurisdiction of the subject matter and for
failure to state a claim were made and granted, 179 F.Supp. 824, the District Court
relying upon this Court's series of decisions beginning with Colegrove
v. Green, 328 U.S. 549, rehearing denied, 329 U.S. 825, motion for
reargument before the full bench denied, 329 U.S. 828. The original and
intervening plaintiffs bring the case here on appeal. 364 U.S. 898. In this Court they have altered
their request for relief, suggesting a "step-by-step approach." The
first step is a remand to the District Court with directions to vacate the order
dismissing the complaint and to enter an order retaining jurisdiction,
providing "the necessary spur to legislative action . . . ." If this
proves insufficient, appellants will ask the "additional spur" of an
injunction prohibiting elections under the 1901 Act, or a declaration of the
Act's unconstitutionality, or both.
Finally, all other means failing, the District Court is invited by the
plaintiffs, greatly daring, to order an election at large or redistrict the
State [**743] itself or through a master. The Solicitor General of the United States,
who has filed a brief amicus and argued in favor of reversal, asks the
Court on this appeal to hold only that the District Court has
"jurisdiction" and may properly exercise it to entertain the
plaintiffs' claims on the merits. This would
leave to that court after remand the questions of the challenged statute's [*277]
constitutionality and of some undefined, unadumbrated relief in the
event a constitutional violation is found.
After an argument at the last Term, the case was set down for
reargument, 366 U.S. 907, and heard this Term.
I.
In sustaining appellants' claim,
based on the Fourteenth Amendment, that the District Court may entertain this
suit, this Court's uniform course of decision over the years is overruled or
disregarded. Explicitly it begins with Colegrove
v. Green, supra, decided in 1946, but its roots run deep in the Court's
historic adjudicatory process.
Colegrove held that a federal court should not entertain an
action for declaratory and injunctive relief to adjudicate the constitutionality,
under the Equal Protection Clause and other federal constitutional and
statutory provisions, of a state statute establishing the respective districts
for the State's election of Representatives to the Congress. Two opinions were written by the four
Justices who composed the majority of the seven sitting members of the
Court. Both opinions joining in the
result in Colegrove v. Green agreed that considerations were
controlling which dictated denial of jurisdiction though not in the strict
sense of want of power. While the two
opinions show a divergence of view regarding some of these considerations,
there are important points of concurrence.
Both opinions demonstrate a predominant concern, first, with avoiding
federal judicial involvement in matters traditionally left to legislative
policy making; second, with respect to the difficulty -- in view of the nature
of the problems of apportionment and its history in this country -- of drawing
on or devising judicial standards for judgment, as opposed to legislative
determinations, of the part which mere numerical equality among voters should
play as a criterion for the allocation of
[*278] political [***721]
power; and, third, with problems of finding appropriate modes of relief
-- particularly, the problem of resolving the essentially political issue of
the relative merits of at-large elections and elections held in districts of
unequal population.
The broad applicability of these
considerations -- summarized in the loose shorthand phrase, "political question"
-- in cases involving a State's apportionment of voting power among its
numerous localities has led the Court, since 1946, to recognize their
controlling effect in a variety of situations.
(In all these cases decision was by a full Court.) The "political
question" principle as applied in Colegrove has found wide
application commensurate with its function as "one of the rules basic to
the federal system and this Court's appropriate place within that
structure." Rescue Army v. Municipal Court, 331 U.S. 549,
570. In Colegrove v. Barrett, 330 U.S. 804, litigants brought
suit in a Federal District Court challenging as offensive to the Equal
Protection Clause Illinois' state legislative-apportionment laws. They pointed to state constitutional provisions
requiring decennial reapportionment and allocation of seats in proportion to
population, alleged a failure to reapportion for more than forty-five years --
during which time extensive population shifts had rendered the legislative
districts grossly unequal -- and sought declaratory and injunctive relief with
respect to all elections to be held thereafter.
After the complaint was dismissed by the District Court, this Court
dismissed an appeal for want of a substantial federal question. A similar District [**744]
Court decision was affirmed here in Radford v. Gary, 352
U.S. 991. And cf. Remmey v. Smith,
342 U.S. 916. In Tedesco v. Board of Supervisors, 339 U.S. 940,
the Court declined to hear, for want of a substantial federal question, the
claim that the division of a municipality into voting districts of unequal
population for the selection for councilmen fell [*279]
afoul of the Fourteenth Amendment, and in Cox v. Peters,
342 U.S. 936, rehearing denied, 343 U.S. 921, it found no substantial federal question
raised by a state court's dismissal of a claim for damages for
"devaluation" of plaintiff's vote by application of Georgia's
county-unit system in a primary election for the Democratic gubernatorial
candidate. The same Georgia system was
subsequently attacked in a complaint for declaratory judgment and an
injunction; the federal district judge declined to take the requisite steps for
the convening of a statutory three-judge court; and this Court, in Hartsfield
v. Sloan, 357 U.S. 916, denied a motion for leave to file a petition for
a writ of mandamus to compel the district judge to act. In MacDougall v. Green, 335
U.S. 281, 283, the Court noted that "To assume that political power is a
function exclusively of numbers is to disregard the practicalities of
government," and, citing the Colegrove cases, declined to find in
"such broad constitutional concepts as due process and equal protection of
the laws," id., at 284, a warrant for federal judicial invalidation
of an Illinois statute requiring as a condition for the formation of a new [***722]
political party the securing of at least two hundred signatures from
each of fifty counties. And in South
v. Peters, 339 U.S. 276, another suit attacking Georgia's county-unit
law, it affirmed a District Court dismissal, saying
"Federal courts consistently refuse to exercise their equity
powers in cases posing political issues arising from a state's geographical
distribution of electoral strength among its political subdivisions." Id.,
at 277.
Of course it is important to
recognize particular, relevant diversities among comprehensively similar
situations. Appellants seek to
distinguish several of this Court's prior decisions on one or another ground
-- Colegrove v. [*280] Green on the ground that federal, not
state, legislative apportionment was involved; Remmey v. Smith on
the ground that state judicial remedies had not been tried; Radford v. Gary
on the ground that Oklahoma has the initiative, whereas Tennessee does
not. It would only darken counsel to
discuss the relevance and significance of each of these assertedly
distinguishing factors here and in the context of this entire line of
cases. Suffice it that they do not serve
to distinguish Colegrove v. Barrett, supra, which is on all fours
with the present case, or to distinguish Kidd v. McCanless, 352
U.S. 920, in which the full Court without dissent, only five years ago,
dismissed on authority of Colegrove v. Green and Anderson
v. Jordan, 343 U.S. 912, an appeal from the Supreme Court of Tennessee
in which a precisely similar attack was made upon the very statute now
challenged. If the weight and momentum
of an unvarying course of carefully considered decisions are to be respected, appellants'
claims are foreclosed not only by precedents governing the exact facts of the
present case but are themselves supported by authority the more persuasive in
that it gives effect to the Colegrove principle in distinctly varying
circumstances in which state arrangements allocating relative degrees of
political influence among geographic groups of voters were challenged under the
Fourteenth Amendment.
[**745]
II.
The Colegrove doctrine, in
the form in which repeated decisions have settled it, was not an
innovation. It represents long judicial
thought and experience. From its
earliest opinions this Court has consistently recognized a class of
controversies which do not lend themselves to judicial standards and judicial
remedies. To classify the various
instances as "political questions" is rather a form [*281]
of stating this conclusion than revealing of analysis. n10 Some of the
cases so labelled have no relevance here.
But from others emerge unifying considerations that are compelling.
n10 See Bickel, Foreword: The Passive Virtues, 75
Harv. L. Rev. 40, 45 et seq. (1961).
1. The cases concerning war or
foreign affairs, for example, are usually explained by the necessity of the
country's speaking with one voice in such matters. While this concern alone undoubtedly accounts
for many of the decisions, n11 others
[***723] do not fit the pattern. It would hardly embarrass the conduct of war
were this Court to determine, in connection with private transactions between
litigants, the date upon which war is to be deemed terminated. But the Court has refused to do so. See, e. g., The Protector, 12 Wall.
700; Brown v. Hiatts, 15 Wall. 177; Adger v. Alston,
15 Wall. 555; Williams v. Bruffy, 96 U.S. 176, 192-193. It does
not suffice to explain such cases as Ludecke v. Watkins, 335 U.S.
160 -- deferring to political determination the question of the duration of war
for purposes of the Presidential power to deport alien enemies -- that judicial
intrusion would seriously [*282] impede the President's power effectively to
protect the country's interests in time of war.
Of course, this is true; but the precise issue presented is the duration
of the time of war which demands the power.
Cf. Martin v. Mott,
12 Wheat. 19; Lamar v. Browne, 92 U.S. 187, 193; Hamilton
v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146; Kahn
v. Anderson, 255 U.S. 1. And even for the purpose of determining the
extent of congressional regulatory power over the tribes and dependent communities
of Indians, it is ordinarily for Congress, not the Court, to determine whether
or not a particular Indian group retains the characteristics constitutionally
requisite to confer the power. n12 E. g., United States v. Holliday,
3 Wall. 407; Tiger v. Western Investment Co., 221 U.S. 286; [**746]
United States v. Sandoval, 231 U.S. 28. A controlling
factor in such cases is that, decision respecting these kinds of complex
matters of policy being traditionally committed not to courts but to the
political agencies of government for determination by criteria of political
expediency, there exists no standard ascertainable by settled judicial
experience or process by reference to which a political decision affecting the
question at issue between the parties can be judged. Where the question arises in the course of a
litigation involving primarily the adjudication of other issues between the
litigants, the Court accepts as a basis for adjudication the political
departments' decision of it. But where
its determination is the sole function to be served by the [***724]
exercise of the judicial power, the Court will not entertain the
action. See Chicago & Southern
Air Lines, Inc., v. Waterman S. S. Corp., [*283]
333 U.S. 103. The dominant consideration is "the lack of
satisfactory criteria for a judicial determination . . . ." Mr. Chief
Justice Hughes, for the Court, in Coleman v. Miller, 307 U.S.
433, 454-455. Compare United States v. Rogers, 4 How. 567, 572,
with Worcester v. Georgia, 6 Pet. 515. n13
n11 See, e. g., United States v. Palmer,
3 Wheat. 610, 634, 635; The Divina Pastora, 4 Wheat. 52; Williams
v. Suffolk Ins. Co., 13 Pet. 415; Kennett v. Chambers, 14
How. 38; Doe v. Braden, 16 How. 635; Jones v. United
States, 137 U.S. 202; Terlinden v. Ames, 184 U.S. 270; Charlton
v. Kelly, 229 U.S. 447; Oetjen v. Central Leather Co., 246
U.S. 297; Ex parte Peru, 318 U.S. 578; Clark v. Allen, 331
U.S. 503. Compare Foster and Elam v. Neilson, 2 Pet. 253, with United
States v. Arredondo, 6 Pet. 691. Of course, judgment concerning the
"political" nature of even a controversy affecting the Nation's
foreign affairs is not a simple mechanical matter, and certain of the Court's
decisions have accorded scant weight to the consideration of unity of action in
the conduct of external relations.
Compare Vermilya-Brown Co. v. Connell, 335 U.S. 377, with United
States v. Pink, 315 U.S. 203.
n12 Obviously, this is the equivalent of saying that
the characteristics are not "constitutionally requisite" in a
judicially enforceable sense. The
recognition of their necessity as a condition of legislation is left, as is
observance of certain other constitutional commands, to the conscience of the
non-judicial organs. Cf. Kentucky v. Dennison, 24 How.
66.
n13 Also compare the Coleman case and United
States v. Sprague, 282 U.S. 716, with Hawke v. Smith (No.
1), 253 U.S. 221. See the National Prohibition Cases, 253 U.S. 350;
and consider the Court's treatment of the several contentions in Leser
v. Garnett, 258 U.S. 130.
This may be, like so many
questions of law, a matter of degree.
Questions have arisen under the Constitution to which adjudication gives
answer although the criteria for decision are less than unwavering bright
lines. Often in these cases illumination
was found in the federal structures established by, or the underlying
presuppositions of, the Constitution.
With respect to such questions, the Court has recognized that,
concerning a particular power of Congress put in issue, ". . . effective
restraints on its exercise must proceed from political rather than from
judicial processes." Wickard v. Filburn, 317 U.S. 111, 120.
It is also true that even regarding the duration of war and the status of
Indian tribes, referred to above as subjects ordinarily committed exclusively
to the non-judicial branches, the Court has suggested that some limitations
exist upon the range within which the decisions of those branches will be
permitted to go unreviewed. See United
States v. Sandoval, supra, at 46; cf. Chastleton Corp. v. Sinclair,
264 U.S. 543. But this is merely to acknowledge that particular circumstances
may differ so greatly in degree as to differ thereby in kind, and that,
although within a certain range of cases on a continuum, no standard of
distinction can be found to tell between them, other cases will fall above or
below the range. The doctrine of
political questions, like any other, is not to
[*284] be applied beyond the
limits of its own logic, with all the quiddities and abstract disharmonies it
may manifest. See the disposition of
contentions based on logically distorting views of Colegrove v. Green
and Hunter v. Pittsburgh, 207 U.S. 161, in Gomillion v. Lightfoot,
364 U.S. 339.
2. The Court has been particularly
unwilling to intervene in matters concerning the structure and organization of
the political institutions of the States.
The abstention from judicial entry into such areas has been greater even
than that which marks the Court's ordinary approach to issues of state power
challenged under broad federal guarantees.
" [**747] We should be very
reluctant to decide that we had jurisdiction in such a case, and thus in an
action of this nature to supervise and review the political administration of a
state government by its own officials and through its own courts. The jurisdiction of this court would only
exist in case there [***725] had been . . . such a plain and substantial
departure from the fundamental principles upon which our government is based
that it could with truth and propriety be said that if the judgment were
suffered to remain, the party aggrieved would be deprived of his life, liberty
or property in violation of the provisions of the Federal Constitution." Wilson
v. North Carolina, 169 U.S. 586, 596. See Taylor and Marshall v. Beckham
(No. 1), 178 U.S. 548; Walton v. House of Representatives, 265
U.S. 487; Snowden v. Hughes, 321 U.S. 1. Cf. In re Sawyer, 124 U.S. 200, 220-221.
Where, however, state law has made
particular federal questions determinative of relations within the structure of
state government, not in challenge of it, the Court has resolved such narrow,
legally defined questions in proper proceedings. See Boyd v. Nebraska ex rel. Thayer,
143 U.S. 135. In such instances there is no conflict between state policy and
the exercise of federal judicial
[*285] power. This distinction explains the decisions in Smiley
v. Holm, 285 U.S. 355; Koenig v. Flynn, 285 U.S. 375; and Carroll
v. Becker, 285 U.S. 380, in which the Court released state
constitutional provisions prescribing local lawmaking procedures from
misconceived restriction of superior federal requirements. Adjudication of the federal claim involved in
those cases was not one demanding the accommodation of conflicting interests for
which no readily accessible judicial standards could be found. See McPherson v. Blacker, 146
U.S. 1, in which, in a case coming here on writ of error from the judgment of a
state court which had entertained it on the merits, the Court treated as
justiciable the claim that a State could not constitutionally select its
presidential electors by districts, but held that Art. II, § 1, cl. 2, of the Constitution left the mode
of choosing electors in the absolute discretion of the States. Cf. Pope
v. Williams, 193 U.S. 621; Breedlove v. Suttles, 302 U.S.
277. To read with literalness the abstracted jurisdictional discussion in the McPherson
opinion reveals the danger of conceptions of "justiciability" derived
from talk and not from the effective decision in a case. In probing beneath the surface of cases in
which the Court has declined to interfere with the actions of political organs
of government, of decisive significance is whether in each situation the
ultimate decision has been to intervene or not to intervene. Compare the reliance in South v. Peters,
339 U.S. 276, on MacDougall v. Green, 335 U.S. 281, and the
"jurisdictional" form of the opinion in Wilson v. North
Carolina, 169 U.S. 586, 596, supra.
3. The cases involving Negro
disfranchisement are no exception to the principle of avoiding federal judicial
intervention into matters of state government in the absence of an explicit and
clear constitutional imperative. For
here the controlling command of Supreme Law is plain and unequivocal. An end of discrimination against [*286]
the Negro was the compelling motive of the Civil War Amendments. The Fifteenth expresses this in terms, and it
is no less true of the Equal Protection
[***726] Clause of the
Fourteenth. Slaughter-House Cases,
16 Wall. 36, 67-72; Strauder v. West Virginia, 100 U.S. 303,
306-307; Nixon v. Herndon, 273 U.S. 536, 541. [**748]
Thus the Court, in cases involving discrimination against the Negro's
right to vote, has recognized not only the action at law for damages, n14 but, in appropriate circumstances, the
extraordinary remedy of declaratory or injunctive relief. n15 Schnell v.
Davis, 336 U.S. 933; Terry v. Adams, 345 U.S. 461. n16
Injunctions in these cases, it should be noted, would not have restrained
state-wide general elections. Compare Giles v. Harris, 189 U.S.
475.
n14 E. g., Myers v. Anderson, 238 U.S.
368; Nixon v. Condon, 286 U.S. 73; Lane v. Wilson,
307 U.S. 268; Smith v. Allwright, 321 U.S. 649. The action for
damages for improperly rejecting an elector's vote had been given by the
English law since the time of Ashby v. White, 1 Brown's Cases in
Parliament 62; 2 Ld. Raym. 938; 3 Ld. Raym. 320, a case which in its own day
precipitated an intraparliamentary war of major dimensions. See 6 Hansard, Parliamentary History of
England (1810), 225-324, 376-436. Prior
to the racial-discrimination cases, this Court had recognized the action, by
implication, in dictum in Swafford v. Templeton, 185 U.S. 487,
and Wiley v. Sinkler, 179 U.S. 58, both respecting federal
elections.
n15 Cf. Gomillion
v. Lightfoot, 364 U.S. 339.
n16 By statute an action for preventive relief is now
given the United States in certain voting cases. 71 Stat. 637, 42 U. S. C. § 1971 (c), amending R. S. § 2004. See United States v. Raines,
362 U.S. 17; United States v. Thomas, 362 U.S. 58.
4. The Court has refused to
exercise its jurisdiction to pass on "abstract questions of political
power, of sovereignty, of government." Massachusetts v. Mellon,
262 U.S. 447, 485. See Texas v. Interstate Commerce Commission,
258 U.S. 158, 162; New Jersey v. Sargent, 269 U.S. 328, 337. The
"political question" doctrine, in this aspect, reflects the policies
underlying the requirement of "standing": that the litigant who would
challenge official [*287] action must claim infringement of an interest
particular and personal to himself, as distinguished from a cause of
dissatisfaction with the general frame and functioning of government -- a
complaint that the political institutions are awry. See Stearns v. Wood, 236 U.S.
75; Fairchild v. Hughes, 258 U.S. 126; United Public Workers
v. Mitchell, 330 U.S. 75, 89-91. What renders cases of this kind
non-justiciable is not necessarily the nature of the parties to them, for the
Court has resolved other issues between similar parties; n17 nor is it the
nature of the legal question involved, for the same type of question has been
adjudicated when presented in other forms of controversy. n18 The crux of the
matter is that courts are not fit instruments of decision where [***727]
what is essentially at stake is the composition of those large contests
of policy traditionally fought out in non-judicial forums, by which governments
and the actions of governments are made and unmade. See Texas v. White, 7 Wall.
700; White v. Hart, 13 Wall. 646; Phillips v. Payne,
92 U.S. 130; Marsh v. Burroughs, 1 Woods 463, 471-472 (Bradley,
Circuit Justice); cf. Wilson v. Shaw,
204 U.S. 24; but [**749] see Coyle v. Smith, 221 U.S.
559. Thus, where the Cherokee Nation sought by an original motion to restrain
the State of Georgia from the enforcement of laws which assimilated Cherokee
territory to the State's counties, abrogated Cherokee law, and abolished
Cherokee government, the Court held that such a claim was not judicially
cognizable. Cherokee Nation v. Georgia,
5 Pet. 1. n19 And in Georgia
[*288] v. Stanton, 6 Wall.
50, the Court dismissed for want of jurisdiction a bill by the State of Georgia
seeking to enjoin enforcement of the Reconstruction Acts on the ground that the
command by military districts which they established extinguished existing
state government and replaced it with a form of government unauthorized by the
Constitution: n20
"That these matters, both as
stated in the body of the bill, and, in the prayers for relief, call for the
judgment of the court upon political questions, and, upon rights, not of
persons or property, but of a political character, will hardly be denied. For the rights for the protection of which
our authority is invoked, are the rights of sovereignty, of political
jurisdiction, of government, of corporate existence as a State, with all its
constitutional powers and privileges. No
case of private rights or private property infringed, or in danger of actual or
threatened infringement, is presented by the bill, in a judicial form, for the
judgment of the court." Id., at 77. n21
n17 Compare Rhode Island v. Massachusetts,
12 Pet. 657, and cases following, with Georgia v. Stanton, 6
Wall. 50.
n18 Compare Worcester v. Georgia, 6 Pet.
515, with Cherokee Nation v. Georgia, 5 Pet. 1, 20, 28 (Mr.
Justice Johnson, concurring), 51 and 75 (Mr. Justice Thompson, dissenting).
n19 This was an alternative ground of Chief Justice
Marshall's opinion for the Court. Id.,
at 20. The question which Marshall reserved as "unnecessary to decide,"
ibid., was not the justiciability of the bill in this aspect, but the
"more doubtful" question whether that "part of the bill which
respects the land occupied by the Indians, and prays the aid of the court to
protect their possession," might be entertained. Ibid.
Mr. Justice Johnson, concurring, found the controversy nonjusticiable
and would have put the ruling solely on this ground, id., at 28, and Mr.
Justice Thompson, in dissent, agreed that much of the matter in the bill was
not fit for judicial determination. Id.,
at 51, 75.
n20 Cf. Mississippi
v. Johnson, 4 Wall. 475.
n21 Considerations similar to those which determined
the Cherokee Nation case and Georgia v. Stanton no doubt
explain the celebrated decision in Nabob of the Carnatic v. East
India Co., 1 Ves. jun. *371; 2 Ves. jun. *56, rather than any attribution
of a portion of British sovereignty, in respect of Indian affairs, to the
company. The reluctance of the English
Judges to involve themselves in contests of factional political power is of
ancient standing. In The Duke of
York's Claim to the Crown, 5 Rotuli Parl. 375, printed in Wambaugh, Cases
on Constitutional Law (1915), 1, the role which the Judges were asked to play
appears to have been rather that of advocates than of judges, but the answer
which they returned to the Lords relied on reasons equally applicable to either
role.
[*289]
5. The influence of these converging considerations -- the caution not
to undertake decision where standards meet for judicial judgment are lacking,
the reluctance to interfere with matters of state government in the absence of
an unquestionable [***728] and effectively enforceable mandate, the
unwillingness to make courts arbiters of the broad issues of political
organization historically committed to other institutions and for whose
adjustment the judicial process is ill-adapted -- has been decisive of the
settled line of cases, reaching back more than a century, which holds that Art.
IV, § 4, of the Constitution,
guaranteeing to the States "a Republican Form of Government," n22 is
not enforceable through the courts. E.
g., O'Neill v. Leamer, 239 U.S. 244; Mountain Timber Co. v. Washington,
243 U.S. 219; [**750] Cochran v. Board of Education,
281 U.S. 370; Highland Farms Dairy, Inc., v. Agnew, 300 U.S. 608.
n23 Claims resting on this specific
[*290] guarantee of the
Constitution have been held non-justiciable which challenged state distribution
of powers between the legislative and judicial branches, Ohio ex rel. Bryant
v. Akron Metropolitan Park District, 281 U.S. 74, state delegation of
power to municipalities, Kiernan v. Portland, Oregon, 223 U.S.
151, state adoption of the referendum as a legislative institution, Ohio ex
rel. Davis v. Hildebrant, 241 U.S. 565, 569, and state restriction
upon the power of state constitutional amendment, Marshall v. Dye,
231 U.S. 250, 256-257. The subject was fully considered in Pacific States
Telephone & Telegraph Co. v. Oregon, 223 U.S. 118, in which the
Court dismissed for want of jurisdiction a writ of error attacking a state
license-tax statute enacted by the initiative, on the claim that this mode of
legislation was inconsistent with a Republican Form of Government and violated
the Equal [***729] Protection Clause and other federal
guarantees. After noting ". . . the
ruinous destruction of legislative authority in matters purely political which
would necessarily be occasioned by giving sanction [*291]
to the doctrine which underlies and would be necessarily involved in
sustaining the propositions contended for," n24 the Court said:
". . . [The] essentially
political nature [of this claim] is at
[**751] once made manifest by
understanding that the assault which the contention here advanced makes it [sic
] not on the tax as a tax, but on the State as a State. It is addressed to the framework and
political character of the government by which the statute levying the tax was
passed. It is the government, the
political entity, which (reducing the case to its essence) is called to the bar
of this court, not for the purpose of testing judicially some exercise of power
assailed, on the ground that its exertion
[*292] has injuriously affected
the rights of an individual because of repugnancy to some constitutional
limitation, but to demand of the State that it establish its right to exist as
a State, republican in form." Id., at 150-151.
n22 "The United States shall guarantee to every
State in this Union a Republican Form of Government, and shall protect each of
them against Invasion; and on Application of the Legislature, or of the
Executive (when the Legislature cannot be convened) against domestic
Violence."
n23 Cf. the cases holding that the Fourteenth
Amendment imposes no such restriction upon the form of a State's governmental
organization as will permit persons affected by government action to complain
that in its organization principles of separation of powers have been
violated. E. g., Dreyer v. Illinois,
187 U.S. 71; Soliah v. Heskin, 222 U.S. 522; Houck v. Little
River Drainage District, 239 U.S. 254. The same consistent refusal of this
Court to find that the Federal Constitution restricts state power to design the
structure of state political institutions is reflected in the cases rejecting
claims arising out of the States' creation, alteration, or destruction of local
subdivisions or their powers, insofar as these claims are made by the
subdivisions themselves, see Laramie County v. Albany County, 92
U.S. 307; Pawhuska v. Pawhuska Oil & Gas Co., 250 U.S. 394; Trenton
v. New Jersey, 262 U.S. 182; Risty v. Chicago, R. I. & P.
R. Co., 270 U.S. 378, 389-390; Williams v. Mayor and City Council
of Baltimore, 289 U.S. 36, or by the whole body of their residents who
share only a general, undifferentiated interest in their preservation. See Hunter v. Pittsburgh, 207
U.S. 161. The policy is also given effect by the denial of "standing"
to persons seeking to challenge state action as infringing the interest of some
separate unit within the State's administrative structure -- a denial which
precludes the arbitrament by federal courts of what are only disputes over the
local allocation of government functions and powers. See, e. g., Smith v. Indiana,
191 U.S. 138; Braxton County Court v. West Virginia, 208 U.S.
192; Marshall v. Dye, 231 U.S. 250; Stewart v. Kansas
City, 239 U.S. 14.
n24 223 U.S., at 141. ". . . The contention, if
held to be sound, would necessarily affect the validity, not only of the
particular statute which is before us, but of every other statute passed in
Oregon since the adoption of the initiative and referendum. And indeed the propositions go further than
this, since in their essence they assert that there is no governmental
function, legislative or judicial, in Oregon, because it cannot be assumed, if
the proposition be well founded, that there is at one and the same time one and
the same government which is republican in form and not of that
character." Compare Luther v. Borden, 7 How. 1, 38-39:
". . . For, if this court is authorized to enter
upon this inquiry as proposed by the plaintiff, and it should be decided that
the charter government had no legal existence during the period of time above
mentioned, -- if it had been annulled by the adoption of the opposing
government, -- then the laws passed by its legislature during that time were
nullities; its taxes wrongfully collected; its salaries and compensation to its
officers illegally paid; its public accounts improperly settled; and the
judgments and sentences of its courts in civil and criminal cases null and
void, and the officers who carried their decisions into operation answerable as
trespassers, if not in some cases as criminals.
"When the decision of this court might lead to
such results, it becomes its duty to examine very carefully its own powers
before it undertakes to exercise jurisdiction."
The starting point of the doctrine
applied in these cases is, of course, Luther v. Borden, 7 How. 1.
The case arose out of the Dorr Rebellion in Rhode Island in 1841-1842. Rhode Island, at the time of the separation
from England, had not adopted a new constitution but had continued, in its
existence as an independent State, under its original royal Charter, with
certain statutory alterations. This
frame of government provided no means for amendment of the fundamental law; the
right of suffrage was to be prescribed by legislation, which limited it to
freeholders. In the 1830's, largely
because of the growth of towns in which there developed a propertied class
whose means were not represented by freehold estates, dissatisfaction arose
with the suffrage qualifications of the charter government. In addition, population shifts had caused a
dated apportionment of seats in the lower house to yield substantial numerical
inequality of political influence, even among qualified voters. The towns felt
themselves underrepresented, and agitation
[***730] began for electoral
reform. When the charter government
failed to respond, popular meetings of those who favored the broader suffrage
were held and delegates elected to a convention which met and drafted a state
constitution. This constitution provided
for universal manhood suffrage (with certain qualifications); and it was to be
adopted by vote of the people at elections at which a similarly expansive
franchise obtained. This new scheme of
government was ratified at the polls and declared effective by the convention,
but the government elected and organized under it, with Dorr at its head, never
came to power. The [*293]
charter government denied the validity of the convention, the
constitution and its government and, after an insignificant skirmish, routed
Dorr and his followers. It meanwhile
provided for the calling of its own convention, which drafted a constitution
that went peacefully into effect in 1843. n25
n25 See Bowen, The Recent Contest in Rhode Island
(1844); Frieze, A Concise History of the Efforts to Obtain an Extension of
Suffrage in Rhode Island; From the Year 1811 to 1842 (2d ed. 1842); Mowry, The
Dorr War (1901); Wayland, The Affairs of Rhode Island (2d ed. 1842).
[**752]
Luther v. Borden was a trespass action brought by one of
Dorr's supporters in a United States Circuit Court to recover damages for the
breaking and entering of his house. The
defendants justified under military orders pursuant to martial law declared by
the charter government, and plaintiff, by his reply, joined issue on the
legality of the charter government subsequent to the adoption of the Dorr
constitution. Evidence offered by the
plaintiff tending to establish that the Dorr government was the rightful
government of Rhode Island was rejected by the Circuit Court; the court charged
the jury that the charter government was lawful; and on a verdict for
defendants, plaintiff brought a writ of error to this Court.
The Court, through Mr. Chief
Justice Taney, affirmed. After noting
that the issue of the charter government's legality had been resolved in that
government's favor by the state courts of Rhode Island -- that the state
courts, deeming the matter a political one unfit for judicial determination,
had declined to entertain attacks upon the existence and authority of the
charter government -- the Chief Justice held that the courts of the United
States must follow those of the State in this regard. Id., at 39-40. It was recognized that
the compulsion to follow [*294] state law would not apply in a federal court
in the face of a superior command found in the Federal Constitution, ibid.,
but no such command was found. The
Constitution, the Court said -- referring to the Guarantee Clause of the Fourth
Article -- ". . . as far as it has provided for an emergency of this kind,
and authorized the general government to interfere in the domestic concerns of
a State, has treated the subject as political in its nature, and placed the
power in the hands of that department." Id., at 42.
"Under this article of the
Constitution it rests with Congress to decide what government is the
established one in a State. For as the
United States guarantee to each State a republican government, Congress must
necessarily decide what government is established in the State before it can
determine whether it is republican or not.
And when the senators and representatives [***731]
of a State are admitted into the councils of the Union, the authority of
the government under which they are appointed, as well as its republican
character, is recognized by the proper constitutional authority. And its decision is binding on every other
department of the government, and could not be questioned in a judicial
tribunal. It is true that the contest in
this case did not last long enough to bring the matter to this issue; and as no
senators or representatives were elected under the authority of the government
of which Mr. Dorr was the head, Congress was not called upon to decide the
controversy. Yet the right to decide is
placed there, and not in the courts." Ibid. n26
n26 The Court reasoned, with respect to the guarantee
against domestic violence also contained in Art. IV, § 4, that this, too, was an authority committed
solely to Congress; that Congress had empowered the President, not the courts,
to enforce it; and that it was inconceivable that the courts should assume a
power to make determinations in the premises which might conflict with those of
the Executive. It noted further that, in
fact, the President had recognized the governor of the charter government as
the lawful authority in Rhode Island, although it had been unnecessary to call
out the militia in his support.
[*295]
In determining this issue non-justiciable, the Court was sensitive to
the same considerations to which its later decisions have given the varied
applications already discussed. It
adverted to the delicacy of judicial intervention into the very structure of
government. n27 It acknowledged
[**753] that tradition had long
entrusted questions of this nature to non-judicial processes, n28 and that
judicial processes were unsuited to their decision. n29 The absence of guiding
standards for judgment was critical, for the question whether the Dorr
constitution had been rightfully adopted depended, in part, upon the extent of
the franchise to be recognized -- the very point of contention over which
rebellion had been fought.
". . . If the Circuit Court
had entered upon this inquiry, by what rule could it have determined the
qualification of voters upon the adoption or rejection of the proposed
constitution, unless there was some previous law of the State to guide it? It is the province of a court to expound the
law, not to make it. And certainly it is
no part of the judicial functions of any court of the United States to
prescribe the qualification of voters in a State, giving the right to those to whom it is
denied by the written and established constitution and laws of the State, or
taking it away from those to whom it is given; nor has it the right to
determine what political privileges
[*296] the citizens of a State
are entitled to, unless there is an established constitution or law to govern
its decision." Id., at 41.
n27 See note 24, supra.
n28 Id., at 39, 46-47.
n29 Id., at 41-42.
Mr. Justice Woodbury (who
dissented with respect to the effect of martial law) agreed with the Court
regarding the inappropriateness of judicial inquiry into the issues:
"But, fortunately for our
freedom from political excitements in judicial duties, this court can never
with propriety be called on officially to be the umpire in questions merely
political. The adjustment of these
questions belongs to the people and their political representatives, either in
the State or general government. These
questions relate to matters not to be settled on strict legal principles. They are adjusted [***732]
rather by inclination, -- or prejudice or compromise, often. Some of them succeed or are defeated even by
public policy alone, or mere naked power, rather than intrinsic right. . . .
"Another evil, alarming and
little foreseen, involved in regarding these as questions for the final
arbitrament of judges would be, that in such an event all political privileges
and rights would, in a dispute among the people, depend on our decision
finally. . . . Disputed points in making
constitutions, depending often, as before shown, on policy, inclination,
popular resolves, and popular will, . . . if the people, in the distribution of
powers under the constitution, should ever think of making judges supreme
arbiters in political controversies, when not selected by nor, frequently,
amenable to them, nor at liberty to follow such various considerations in their
judgments as belong to mere political questions, they will dethrone themselves
and lose one of their own invaluable birthrights; building up in this way --
slowly, but surely -- a new sovereign power in the [*297]
republic, in most respects irresponsible and unchangeable for life, and
one more dangerous, in theory at least, than the worst elective oligarchy in
the worst of times. . . ." Id., at 51-53. n30
n30 In evaluating the Court's determination not to
inquire into the authority of the charter government, it must be remembered
that, throughout the country, Dorr "had received the sympathy of the
Democratic press. His cause, therefore,
became distinctly a party issue." 2 Warren, The Supreme Court in United
States History (Rev. ed. 1937), 186.
[**754]
III.
The present case involves all of
the elements that have made the Guarantee Clause cases non-justiciable. It is, in effect, a Guarantee Clause claim
masquerading under a different label.
But it cannot make the case more fit for judicial action that appellants
invoke the Fourteenth Amendment rather than Art. IV, § 4, where, in fact, the gist of their
complaint is the same -- unless it can be found that the Fourteenth Amendment
speaks with greater particularity to their situation. We have been admonished to avoid "the
tyranny of labels." Snyder v. Massachusetts, 291 U.S. 97,
114. Art. IV, § 4, is not committed by
express constitutional terms to Congress.
It is the nature of the controversies arising under it, nothing else,
which has made it judicially unenforceable.
Of course, if a controversy falls within judicial power, it depends
"on how he [the plaintiff] casts his action," Pan American
Petroleum Corp. v. Superior Court, 366 U.S. 656, 662, whether he
brings himself within a jurisdictional statute.
But where judicial competence is wanting, it cannot be created by
invoking one clause of the Constitution rather than another. When what was essentially a Guarantee Clause
claim was sought to be laid, as well, under the Equal Protection Clause in Pacific
States Telephone & Telegraph Co. v. Oregon, supra, the Court had
no difficulty in "dispelling
[*298] any mere confusion
resulting from forms of expression and considering the substance of things . .
. ." 223 U.S., at 140.
Here appellants attack "the
State as a State," precisely as it was perceived to be attacked in the Pacific
States case, id., at 150. Their complaint is that the basis of [***733]
representation of the Tennessee Legislature hurts them. They assert that "a minority now rules
in Tennessee," that the apportionment statute results in a
"distortion of the constitutional system," that the General Assembly
is no longer "a body representative of the people of the State of
Tennessee," all "contrary to the basic principle of representative
government . . . ." Accepting appellants' own formulation of the issue,
one can know this handsaw from a hawk.
Such a claim would be non-justiciable not merely under Art. IV, § 4, but under any clause of the Constitution,
by virtue of the very fact that a federal court is not a forum for political
debate. Massachusetts v. Mellon,
supra.
But appellants, of course, do not
rest on this claim simpliciter.
In invoking the Equal Protection Clause, they assert that the distortion
of representative government complained of is produced by systematic
discrimination against them, by way of "a debasement of their votes . . .
." Does this characterization, with due regard for the facts from which it
is derived, add anything to appellants'
case? n31
n31 Appellants also allege discrimination in the
legislature's allocation of certain tax burdens and benefits. Whether or not such discrimination would
violate the Equal Protection Clause if the tax statutes were challenged in a
proper proceeding, see Dane v. Jackson, 256 U.S. 589; cf. Nashville,
C. & St. L. R. Co. v. Wallace, 288 U.S. 249, 268, these
recitative allegations do not affect the nature of the controversy which
appellants' complaints present.
At first blush, this charge of
discrimination based on legislative underrepresentation is given the appearance
of [*299] a more private, less impersonal claim, than
the assertion that the frame of government is askew. Appellants appear as representatives of a
class that is prejudiced as a class, in contradistinction to the polity in its
entirety. However, the discrimination
relied on is the deprivation of what appellants conceive to be their
proportionate share of political influence.
[**755] This, of course, is the
practical effect of any allocation of power within the institutions of
government. Hardly any distribution of
political authority that could be assailed as rendering government
nonrepublican would fail similarly to operate to the prejudice of some groups,
and to the advantage of others, within the body politic. It would be ingenuous not to see, or
consciously blind to deny, that the real battle over the initiative and
referendum, or over a delegation of power to local rather than state-wide
authority, is the battle between forces whose influence is disparate among the
various organs of government to whom power may be given. No shift of power but works a corresponding
shift in political influence among the groups composing a society.
What, then, is this question of
legislative apportionment? Appellants invoke the right to vote and to have
their votes counted. n32 But [***734] they are permitted to vote and their votes
are counted. They go to the polls, they
cast their ballots, they send their representatives to the state [*300]
councils. Their complaint is
simply that the representatives are not sufficiently numerous or powerful -- in
short, that Tennessee has adopted a basis of representation with which they are
dissatisfied. Talk of
"debasement" or "dilution" is circular talk. One cannot speak of "debasement" or
"dilution" of the value of a vote until there is first defined a
standard of reference as to what a vote should be worth. What is actually asked of the Court in this
case is to choose among competing bases of representation -- ultimately,
really, among competing theories of political philosophy -- in order to
establish an appropriate frame of government for the State of Tennessee and
thereby for all the States of the Union.
n32 Appellants would find a "right" to have
one's ballot counted on authority of United States v. Mosley, 238
U.S. 383; United States v. Classic, 313 U.S. 299; United
States v. Saylor, 322 U.S. 385. All that these cases hold is that
conspiracies to commit certain sharp election practices which, in a federal
election, cause ballots not to receive the weight which the law has in fact
given them, may amount to deprivations of the constitutionally secured right to
vote for federal officers. But see United
States v. Bathgate, 246 U.S. 220. The cases do not so much as
suggest that there exists a constitutional limitation upon the relative weight
to which the law might properly entitle respective ballots, even in federal
elections.
In such a matter, abstract
analogies which ignore the facts of history deal in unrealities; they betray
reason. This is not a case in which a
State has, through a device however oblique and sophisticated, denied Negroes
or Jews or redheaded persons a vote, or given them only a third or a sixth of a
vote. That was Gomillion v. Lightfoot,
364 U.S. 339. What Tennessee illustrates is an old and still widespread method
of representation -- representation by local geographical division, only in
part respective of population -- in preference to others, others, forsooth,
more appealing. Appellants contest this
choice and seek to make this Court the arbiter of the disagreement. They would make the Equal Protection Clause
the charter of adjudication, asserting that the equality which it guarantees
comports, if not the assurance of equal weight to every voter's vote, at least
the basic conception that representation ought to be proportionate to
population, a standard by reference to which the reasonableness of
apportionment plans may be judged.
To find such a political
conception legally enforceable in the broad and unspecific guarantee of equal
protection is to rewrite the Constitution.
See Luther v. Borden, supra. Certainly, "equal
protection" is no more secure
[*301] a foundation for judicial
judgment of the permissibility of varying forms of representative [**756]
government than is "Republican Form." Indeed since "equal
protection of the laws" can only mean an equality of persons standing in
the same relation to whatever governmental action is challenged, the
determination whether treatment is equal presupposes a determination concerning
the nature of the relationship. This,
with respect to apportionment, means an inquiry into the theoretic base of
representation in an acceptably republican state. For a court could not determine the equal-protection
issue without in fact first determining the Republican-Form issue, simply
because what is reasonable for equal-protection purposes will depend upon what
frame of government, basically, is allowed.
To divorce "equal protection" from "Republican Form"
is to talk about half a question.
The notion that representation
proportioned to the geographic spread of population is so universally accepted
as a necessary element of equality between man and man that [***735]
it must be taken to be the standard of a political equality preserved by
the Fourteenth Amendment -- that it is, in appellants' words "the basic
principle of representative government" -- is, to put it bluntly, not
true. However desirable and however
desired by some among the great political thinkers and framers of our
government, it has never been generally practiced, today or in the past. It was not the English system, it 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. Unless judges, the judges of this Court, are
to make their private views of political wisdom the measure of the Constitution
-- views which in all honesty cannot but give the appearance, if not reflect
the reality, of [*302] involvement with the business of partisan
politics so inescapably a part of apportionment controversies -- the Fourteenth
Amendment, "itself a historical product," Jackman v. Rosenbaum
Co., 260 U.S. 22, 31, provides no guide for judicial oversight of the
representation problem.
1. Great Britain. Writing in 1958, Professor W. J. M. Mackenzie
aptly summarized the British history of the principle of representation
proportioned to population: "'Equal electoral districts' formed part of
the programme of radical reform in England in the 1830s, the only part of that
programme which has not been realised." n33 Until the late nineteenth
century, the sole base of representation (with certain exceptions not now
relevant) was the local geographical unit: each county or borough returned its
fixed number of members, usually two for the English units, regardless of
population. n34 Prior to the Reform Act of 1832, this system was marked by the
almost total disfranchisement of the populous northern industrial centers,
which had grown to significant size at the advent of the Industrial Revolution
and had not been granted borough representation, and by the existence of the
rotten borough, playing its substantial part in the Crown's struggle for
continued control of the Commons. n35 In 1831, ten southernmost English
counties, numbering three and a quarter million people, had two hundred and
thirty-five parliamentary representatives, while the six northernmost counties,
with more than three and a half million people, had sixty-eight. n36 [**757]
It was said that one hundred and eighty persons appointed three hundred
and [*303] fifty members in the Commons. n37 Less than a
half century earlier, Madison in the Federalist had remarked that half the
House was returned by less than six thousand of the eight million people of
England and Scotland. n38
n33 Mackenzie, Free Elections (1958) (hereafter,
Mackenzie), 108.
n34 Ogg, English Government and Politics (2d ed. 1936)
(hereafter, Ogg), 248-250, 257; Seymour, Electoral Reform in England and Wales
(1915) (hereafter, Seymour), 46-47.
n35 Ogg 257-259; Seymour 45-52; Carpenter, The
Development of American Political Thought (1930) (hereafter, Carpenter), 45-46.
n36 Ogg 258.
n37 Seymour 51.
n38 The Federalist, No. 56 (Wright ed. 1961), at
382. Compare Seymour 49. This takes account of the restricted
franchise as well as the effect of the local-unit apportionment principle.
The Act of 1832, the product of a
fierce partisan political struggle and the occasion of charges of
gerrymandering [***736] not without foundation, n39 effected
eradication of only the most extreme numerical inequalities of the unreformed
system. It did not adopt the principle
of representation based on population, but merely disfranchised certain among
the rotten borough and enfranchised most of the urban centers -- still quite
without regard to their relative numbers. n40 In the wake of the Act there
remained substantial electoral inequality: the boroughs of Cornwall were
represented sixteen times as weightily, judged by population, as the county's
eastern division; the average ratio of seats to population in ten agricultural
counties was four and a half times that in ten manufacturing divisions;
Honiton, with about three thousand inhabitants, was equally represented with
Liverpool, which had four hundred thousand. n41 In 1866 apportionment by
population began to be advocated generally in the House, but was not made the
basis of the redistribution of 1867, although the act of that year did
apportion representation more evenly, gauged by the population standard. n42
Population shifts increased the surviving inequalities; by 1884 the
representation ratio [*304] in many small boroughs was more than
twenty-two times that of Birmingham or Manchester, forty-to-one disparities
could be found elsewhere, and, in sum, in the 1870's and 1880's, a fourth of
the electorate returned two-thirds of the members of the House. n43
n39 Seymour 52-76.
n40 Ogg 264-265; Seymour 318-319.
n41 For these and other instances of gross inequality,
see Seymour 320-325.
n42 Seymour 333-346; Ogg 265.
n43 Seymour 349, 490-491.
The first systematic English
attempt to distribute seats by population was the Redistribution Act of 1885.
n44 The statute still left ratios of inequality of as much as seven to one, n45
which had increased to fifteen to one by 1912. n46 In 1918 Parliament again
responded to "shockingly bad" conditions of inequality, n47 and to
partisan political inspiration, n48 by redistribution. n49 In 1944,
redistribution was put on a periodic footing by the House of Commons
(Redistribution of Seats) Act of that year, n50 which committed a continuing
primary responsibility for reapportioning the Commons to administrative
agencies (Boundary Commissions for England, Scotland, Wales and Northern
Ireland, respectively). n51 The Commissions, having [**758]
regard to certain rules prescribed for their guidance, are to prepare at
designated intervals reports for the Home Secretary's submission to Parliament,
along with the draft of an Order in Council to give effect to the [*305]
Commissions' recommendations. The
districting rules adopt the basic principle of representation by population,
although the principle is significantly modified by directions to respect local
geographic boundaries as far as practicable, and by discretion to take account
of special geographical conditions, including the [***737]
size, shape and accessibility of constituencies. Under the original 1944 Act, the rules
provided that (subject to the exercise of the discretion respecting special
geographical conditions and to regard for the total size of the House of
Commons as prescribed by the Act) so far as practicable, the single-member
districts should not deviate more than twenty-five percent from the electoral
quota (population divided by number of constituencies). However, apparently at the recommendation of
the Boundary Commission for England, the twenty-five percent standard was
eliminated as too restrictive in 1947, and replaced by the flexible provision
that constituencies are to be as near the electoral quota as practicable, a
rule which is expressly subordinated both to the consideration of special
geographic conditions and to that of preserving local boundaries. n52 Free of
the twenty-five percent rule, the Commissions drew up plans of distribution in
which inequalities among the districts run, in ordinary cases, as high as two
to one and, in the case of a few extraordinary constituencies, three to one.
n53 The action of the Boundary Commission for England was twice challenged in
the courts in 1954 -- the claim being that the Commission had violated
statutory rules [*306] prescribing the standards for its judgment --
and in both cases the Judges declined to intervene. In Hammersmith Borough Council v. Boundary
Commission for England, n54 Harman, J., was of opinion that the nature of
the controversy and the scheme of the Acts made the matter inappropriate for
judicial interference, and in Harper v. Home Secretary, n55 the
Court of Appeal, per Evershed, M. R., quoting Harman, J., with approval,
adverting to the wide range of discretion entrusted to the Commission under the
Acts, and remarking the delicate character of the parliamentary issues in which
it was sought to engage the court, reached the same conclusion. n56
n44 Seymour 489-518.
n45 Mackenzie 108; see also Seymour 513-517.
n46 Ogg 270.
n47 Ogg 253.
n48 Ogg 270-271.
n49 Ogg 273-274.
n50 7 & 8 Geo. VI, c. 41. The 1944 Act was amended by the House of
Commons (Redistribution of Seats) Act, 1947, 10 & 11 Geo. VI, c. 10, and
the two, with other provisions, were consolidated in the House of Commons
(Redistribution of Seats) Act, 1949, 12 & 13 Geo. VI, c. 66, since amended
by the House of Commons (Redistribution of Seats) Act, 1958, 6 & 7 Eliz.
II, c. 26.
n51 See generally Butler, The Redistribution of Seats,
33 Public Administration 125 (1955).
n52 See note 50, supra. However, Commissions are given discretion to
depart from the strict application of the local boundary rule to avoid
excessive disparities between the electorate of a constituency and the
electoral quota, or between the electorate of a constituency and that of
neighboring constituencies. For detailed
discussion, see Craig, Parliament and Boundary Commissions, [1959] Public Law
23. See also Butler, supra, note
51, at 127.
n53 Mackenzie 108, 113.
n54 The Times, Dec. 15, 1954, p. 4, cols 3-4.
n55 [1955] 1 Ch. 238.
n56 The court reserved the question whether a judicial
remedy might be found in a case in which it appeared that a Commission had
manifestly acted in complete disregard of the Acts.
The House of Commons
(Redistribution of Seats) Act, 1958, n57 made two further amendments to the
law. Responsive to the recommendation of
the Boundary Commission for England, n58 the interval permitted between
Commission reports was more than doubled, to a new maximum of fifteen years.
n59 And at the [**759] suggestion of the same Commission that
"It would ease the future labours of the Commission and remove much local
irritation if Rule 5 [requiring
[***738] that the electorate of
each constituency be as near the electoral quota as practicable] were to be so
amended as to allow us to make recommendations preserving the status quo in any
area where such a course appeared to be desirable and not inconsistent [*307]
with the broad intention of the Rules," n60 the Commissions were
directed to consider the inconveniences attendant upon the alteration of
constituencies, and the local ties which such alteration might break. The Home Secretary's view of this amendment
was that it worked to erect "a presumption against making changes unless
there is a very strong case for them." n61
n57 Note 50, supra.
n58 First Periodical Report of the Boundary Commission
for England [Cmd. 9311] (1954), 4, par. 19.
n59 Under the 1949 Act, see note 50, supra, the
intervals between reports were to be not less than three nor more than seven
years, with certain qualifications. The 1958 Act raised the minimum to ten and
the maximum to fifteen years.
n60 First Periodical Report, supra, note 58, at
4, par. 20.
n61 582 H. C. Deb. (5th ser. 1957-1958), 230.
2. The Colonies and the Union. For the guiding political theorists of the
Revolutionary generation, the English system of representation, in its most
salient aspects of numerical inequality, was a model to be avoided, not
followed. n62 Nevertheless, the basic English principle of apportioning
representatives among the local governmental entities, towns or counties,
rather than among units of approximately equal population, had early taken root
in the colonies. n63 In some, as in Massachusetts and Rhode Island, numbers of
electors were taken into account, in a rough fashion, by allotting increasing
fixed quotas of representatives to several towns or classes of towns graduated
by population, but in most of the colonies delegates were allowed to the local
units without respect to numbers. n64 This resulted in grossly unequal
electoral units. n65 The representation ratio in one North Carolina county was
more than eight times that in another. n66 Moreover, American rotten boroughs
had appeared, n67 and apportionment was made an instrument first in the
political [*308] struggles between the King or the royal
governors and the colonial legislatures, n68 and, later, between the older
tidewater regions in the colonies and the growing interior. n69 Madison in the
Philadelphia Convention adverted to the "inequality of the Representation
in the Legislatures of particular States, . . ." n70 arguing that it was
necessary to confer on Congress the power ultimately to regulate the times,
places and manner of selecting Representatives, n71 in order to forestall the
overrepresented counties' securing themselves a similar overrepresentation in
the national councils. The example of
South Carolina, where Charleston's overrepresentation was a continuing bone of
contention between the tidewater and the back country, was cited by Madison in
the Virginia Convention and by King in the Massachusetts Convention, in support
of the same power, and King also spoke of the extreme numerical inequality
arising from Connecticut's town-representation system. n72
n62 See The Federalist, No. 56, supra, note 38;
Tudor, Life of James Otis (1823), 188-190.
n63 Griffith, The Rise and Development of the
Gerrymander (1907) (hereafter, Griffith), 23-24.
n64 Luce, Legislative Principles (1930) (hereafter,
Luce), 336-342.
n65 Griffith 25.
n66 Griffith 15-16, n. 1.
n67 Griffith 28.
n68 Carpenter 48-49, 54; Griffith 26, 28-29; Luce
339-340.
n69 Carpenter 87; Griffith 26-29, 31.
n70 II Farrand, Records of the Federal Convention
(1911), 241.
n71 The power was provided. Art. I, §
4, cl. 1.
n72 III Elliot's Debates (2d ed. 1891), 367; II id.,
at 50-51.
Such inequalities survived the
constitutional [***739] period.
The United States Constitution itself did not largely adopt the
principle of numbers. Apportionment of
the national legislature among the States was one of the most difficult [**760]
problems for the Convention; n73 its solution -- involving State
representation in the Senate n74 and the three-fifths compromise in the House
n75 -- left neither chamber apportioned proportionately to population. [*309]
Within the States, electoral power continued to be allotted to favor the
tidewater. n76 Jefferson, in his Notes on Virginia, recorded the "very unequal"
representation there: individual counties differing in population by a ratio of
more than seventeen to one elected the same number of representatives, and
those nineteen thousand of Virginia's fifty thousand men who lived between the
falls of the rivers and the seacoast returned half the State's senators and
almost half its delegates. n77 In South Carolina in 1790, the three lower
districts, with a white population of less than twenty-nine thousand elected
twenty senators and seventy assembly members; while in the uplands more than
one hundred and eleven thousand white persons elected seventeen senators and
fifty-four assemblymen. n78
n73 See Madison, in I Farrand, op. cit., supra,
note 70, at 321: "The great difficulty lies in the affair of
Representation; and if this could be adjusted, all others would be
surmountable."
n74 See The Federalist, No. 62 (Wright ed. 1961), at
408-409.
n75 See The Federalist, No. 54, id., at
369-374.
n76 Carpenter 130.
n77 Jefferson, Notes on the State of Virginia (Peden
ed. 1955), 118-119. See also II Writings
of Thomas Jefferson (Memorial ed. 1903), 160-162.
n78 Carpenter 139-140.
In the early nineteenth century,
the demands of the interior became more insistent. The apportionment quarrel in Virginia was a
major factor in precipitating the calling of a constitutional convention in
1829. Bitter animosities racked the
convention, threatening the State with disunion. At last a compromise which gave the three
hundred and twenty thousand people of the west thirteen senators, as against
the nineteen senators returned by the three hundred sixty-three thousand people
of the east, commanded agreement. It was
adopted at the polls but left the western counties so dissatisfied that there
were threats of revolt and realignment with the State of Maryland. n79
n79 Griffith 102-104.
Maryland, however, had her own
numerical disproportions. In 1820, one
representative vote in Calvert County
[*310] was worth five in Frederick
County, and almost two hundred thousand people were represented by eighteen
members, while fifty thousand others elected twenty. n80 This was the result of
the county-representation system of allotment.
And, except for Massachusetts which, after a long struggle, did adopt
representation by population at the mid-century, a similar town-representation
principle continued to prevail in various forms throughout New England, with
all its attendant, often gross inequalities. n81
n80 Griffith 104-105.
n81 Luce 343-350.
Bowen, supra, note 25, at 17-18, records that in 1824 Providence
County, having three-fifths of Rhode Island's population, elected only
twenty-two of its seventy-two representatives, and that the town of Providence,
more than double the size of Newport, had half Newport's number of
representatives.
3. The States at the time of
ratification of the Fourteenth Amendment, and those later admitted. The
[***740] several state
conventions throughout the first half of the nineteenth century were the scenes
of fierce sectional and party strifes respecting the geographic allocation of
representation. n82 Their product was a wide variety of apportionment methods
which recognized the element of population in differing ways and degrees. Particularly
[**761] pertinent to appraisal of
the contention that the Fourteenth Amendment embodied a standard limiting the freedom
of the States with regard to the principles and bases of local legislative
apportionment is an examination of the apportionment provisions of the
thirty-three States which ratified the Amendment between 1866 and 1870, at
their respective times of ratification.
These may be considered in two groups: (A) the ratifying States other
than the ten Southern States whose constitutions, at the time of ratification
or shortly thereafter, were the work of the Reconstruction Act conventions; n83
and [*311] (B) the ten Reconstruction-Act States. All thirty-three are significant, because
they demonstrate how unfounded is the assumption that the ratifying States
could have agreed on a standard apportionment theory or practice, and how
baseless the suggestion that by voting for the Equal Protection Clause they
sought to establish a test mold for apportionment which -- if appellants'
argument is sound -- struck down sub silentio not a few of their own
state constitutional provisions. But the
constitutions of the ten Reconstruction-Act States have an added importance,
for it is scarcely to be thought that the Congress which was so solicitous for
the adoption of the Fourteenth Amendment as to make the readmission of the late
rebel States to Congress turn on their respective ratifications of it, would
have approved constitutions which -- again, under appellants' theory --
contemporaneously offended the Amendment.
n82 Carpenter 130-137; Luce 364-367; Griffith 116-117.
n83 See 14 Stat. 428; 15 Stat. 2, 14, 41.
A. Of the twenty-three ratifying
States of the first group, seven or eight had constitutions which demanded or
allowed apportionment of both houses on the basis of population, n84
unqualifiedly or with only qualifications respecting the preservation of local
boundaries. n85 Three [*312] [***741]
more apportioned on what was essentially a population base, but provided
that in one house counties having a specified fraction of a ratio -- a moiety
or two-thirds -- should have a representative. n86 Since each of these three
States limited the size of their chambers, the
[**762] fractional rule could
operate -- and, at least in Michigan, has in fact operated n87 -- to produce
substantial numerical inequalities
[*313] in favor of the sparsely
populated counties. n88 Iowa favored her small counties by the rule that no
more than four counties might be combined in a representative district, n89 and
New York and Kansas compromised population and county-representation principles
by assuring every county, regardless of the number of its inhabitants, at least
one seat in their respective Houses. n90
n84 Various indices of population were employed among
the States which took account of the factor of numbers. Some counted all inhabitants, e. g.,
N. J. Const., 1844, Art. IV, § 3; some,
only white inhabitants, e. g., Ill. Const., 1848, Art. III, § 8; some, male inhabitants over twenty-one, e.
g., Ind. Const., 1851, Art. IV, § §
4-5; some, qualified voters, e. g., Tenn. Const., 1834, Art. II,
§ § 4 to 6; some excluded aliens, e.
g., N. Y. Const., 1846, Art. III, § §
4, 5 (and untaxed persons of color); some excluded untaxed Indians and
military personnel, e. g., Neb. Const., 1866-1867, Art. II, § 3. For
present purposes these differences, although not unimportant as revealing
fundamental divergences in representation theory, will be disregarded.
n85 Ore. Const., 1857, Art. IV, § § 5, 6, 7; Ill. Const., 1848, Art. III, §
§ 8, 9; Ind. Const., 1851, Art. IV, §
§ 4, 5, 6; Minn. Const., 1857, Art. IV,
§ 2; Wis. Const., 1848, Art. IV, §
§ 3 to 5; Mass. Const., 1780, Amends.
XXI, XXII; Neb. Const., 1866-1867, Art. II, §
3. All of these but Minnesota
made provision for periodic reapportionment. Nevada's Constitution of 1864,
Art. XV, § 13, provided that the federal
censuses and interim state decennial enumerations should serve as the bases of
representation for both houses, but did not expressly require either numerical
equality or reapportionment at fixed intervals.
Several of these constitutions contain provisions which
forbid splitting counties or which otherwise require recognition of local
boundaries. See, e. g., the
severe restriction in Ill. Const., 1848, Art. III, § 9.
Such provisions will almost inevitably produce numerical inequalities.
See, for example, University of Oklahoma, Bureau of Government Research,
Legislative Apportionment in Oklahoma (1956), 21-23. However, because their effect in this regard
will turn on idiosyncratic local factors, and because other constitutional
provisions are a more significant source of inequality, these provisions are
here disregarded.
n86 Tenn. Const., 1834, Art. II, § § 4 to 6 (two-thirds of a ratio entitles a
county to one representative in the House); W. Va. Const., 1861-1863, Art. IV,
§ § 4, 5, 7, 8, 9 (one-half of a ratio
entitles a county to one representative in the House); Mich. Const., 1850, Art.
IV, § § 2 to 4 (one-half of a ratio
entitles each county thereafter organized to one representative in the House). In Oregon and Iowa a major-fraction rule
applied which gave a House seat not only to counties having a moiety of a
single ratio, but to all counties having more than half a ratio in excess of
the multiple of a ratio. Ore. Const., 1857, Art. IV, § 6, note 85, supra; Iowa Const., 1857,
Art. III, § § 33, 34, 35, 37, note 89, infra.
n87 See Bone, States Attempting to Comply with
Reapportionment Requirements, 17 Law & Contemp. Prob. 387, 391 (1952).
n88 It also appears, although the section is not
altogether clear, that the provisions of West Virginia's Constitution
controlling apportionment of senators would operate in favor of the State's
less populous regions by limiting any single county to a maximum of two
senators. W. Va. Const., 1861-1863, Art. IV, §
4.
n89 Iowa Const., 1857, Art. III, § § 33, 34, 35, 37.
n90 N. Y. Const., 1846, Art. III, § § 4, 5 (except Hamilton County); Kan. Const.,
1859, Art. 2, § 2; Art. 10. The Kansas provisions require periodic
apportionment based on censuses, but do not in terms demand equal districts.
Ohio and Maine recognized the
factor of numbers by a different device.
The former gave a House representative to each county having half a
ratio, two representatives for a ratio and three-quarters, three representatives
for three ratios, and a single additional representative for each additional
ratio. n91 The latter, after apportioning among counties on a population base,
gave each town of fifteen hundred inhabitants one representative, each town of
three thousand, seven hundred and fifty inhabitants two representatives, and so
on in increasing intervals to twenty-six thousand, two hundred and fifty
inhabitants -- towns of that size or larger receiving the maximum permitted
number of representatives: seven. n92 The departure from numerical equality
under these systems is apparent: in Maine, assuming the incidence of towns
in [*314] all categories, representative ratios would
differ by factors of two and a half to one, at a minimum. Similarly, Missouri gave each of its
counties, however small, one representative, two representatives for three
ratios, three representatives for six ratios, and one additional representative
for each three ratios above six. n93 New Hampshire allotted [***742]
a representative to each town of one hundred and fifty ratable male
polls of voting age and one more representative for each increment of three
hundred above that figure; n94 its Senate was not apportioned by population but
among districts based on the proportion of direct taxes paid. n95 In
Pennsylvania, the basis of apportionment in both houses was taxable
inhabitants; and in the House every county of
[**763] at least thirty-five
hundred taxables had a representative, nor could more than three counties be
joined in forming a representative district; while in the Senate no city or
county could have more than four of the State's twenty-five to thirty-three
senators. n96
n91 Ohio Const., 1851, Art. XI, § § 1 to 5.
See Art. XI, § § 6 to 9 for
Senate apportionment.
n92 Me. Const., 1819, Art. IV, Pt. First, § § 2, 3.
See Art. IV, Pt. Second, § 2, for
Senate apportionment based on numbers.
n93 Mo. Const., 1865, Art. IV, § § 2, 7, 8.
See Art. IV, § § 4 to 8, for
Senate apportionment based on numbers.
n94 Towns smaller than one hundred and fifty, if so
situated that it was "very inconvenient" to join them to other towns
for voting purposes, might be permitted by the legislature to send a
representative.
n95 N. H. Const., 1792, Pt. Second, § § IX to XI; Pt. Second, § XXVI.
n96 Pa. Const., 1838, as amended, Art. I, § § 4, 6, 7.
Finally, four States apportioned
at least one House with no regard whatever to population. In Connecticut n97 and Vermont n98
representation in the House was on a town basis; Rhode Island gave one senator
to each of its towns or cities, n99 and New Jersey, one to each of its
counties. n100 [*315] Nor, in any of these States, was the other
House apportioned on a strict principle of equal numbers: Connecticut gave each
of its counties a minimum of two senators n101 and Vermont, one; n102 New
Jersey assured each county a representative; n103 and in Rhode Island, which
gave at least one representative to each town or city, no town or city could
have more than one-sixth of the total number in the House. n104
n97 Conn. Const., 1818, Art. Third, § 3.
n98 Vt. Const., 1793, c. II, § 7.
n99 R. I. Const., 1842, Art. VI, § 1.
n100 N. J. Const., 1844, Art. IV, § 2, cl. One.
n101 Conn. Const., 1818, Amend. II.
n102 Vt. Const., 1793, Amend. 23.
n103 N. J. Const., 1844, Art. IV, § 3, cl. One.
n104 R. I. Const., 1842, Art. V, § 1.
B. Among the ten late Confederate
States affected by the Reconstruction Acts, in only four did it appear that
apportionment of both state legislative houses would or might be based strictly
on population. n105 In North Carolina, n106 South Carolina, n107 Louisiana,
n108 and Alabama, n109 each county (in the case of Louisiana, each parish) was
assured at least one seat in the lower House irrespective of numbers -- a
distribution which exhausted, respectively,
[*316] on the basis of the
number of then-existing counties, three-quarters, one-quarter, two-fifths and
three-fifths of the maximum possible number of representatives, before a single
seat was available for assignment on a population basis; [***743]
and in South Carolina, moreover, the Senate was composed of one member
elected from each county, except that Charleston sent two. n110 In Florida's
House, each county had one seat guaranteed and an additional seat for every
thousand registered voters up to a maximum of four representatives; n111 while
Georgia, whose Senate seats were distributed among forty-four single-member
districts each composed of three contiguous counties, n112 assigned
representation in its House as follows: three seats to each [**764]
of the six most populous counties, two to each of the thirty-one next
most populous, one to each of the remaining ninety-five. n113 As might be
expected, the one-representative-per-county minimum pattern has proved
incompatible with numerical equality, n114 and Georgia's [*317]
county-clustering system has produced representative-ratio disparities,
between the largest and smallest counties, of more than sixty to one. n115
n105 Ark. Const., 1868, Art. V, § § 8, 9; Va. Const., 1864, Art. IV, § 6 (this constitution was in effect when
Virginia ratified the Fourteenth Amendment); Va. Const., 1870, Art. V, § 4 (this was Virginia's Reconstruction-Act
convention constitution); Miss. Const., 1868, Art. IV, § § 33 to 35; Tex. Const., 1868, Art. III, §
§ 11, 34. The Virginia Constitutions and Texas'
provisions for apportioning its lower chamber do not in terms require equality
of numbers, although they call for reapportionment following a census. In
Arkansas, the legislature was authorized, but not commanded, to reapportion
periodically; it is not clear that equality was required.
n106 N. C. Const., 1868, Art. II, § § 6, 7.
See Art. II, § 5, for Senate
apportionment based on numbers.
n107 S. C. Const., 1868, Art. I, § 34; Art. II, § § 4 to 6.
n108 La. Const., 1868, Tit. II, Arts. 20, 21. See Tit. II, Arts. 28 to 30, for Senate
apportionment based on numbers.
n109 Ala. Const., 1867, Art. VIII, § 1. See
Art. VIII, § 3, for Senate apportionment
based on numbers.
n110 S. C. Const., 1868, Art. II, § 8.
n111 Fla. Const., 1868, Art. XIV, par. 1. See Art. XIV, par. 2, for Senate
apportionment.
n112 Ga. Const., 1868, Art. III, § 2. The
extent of legislative authority to alter these districts is unclear, but it
appears that the structure of three contiguous counties for each of forty-four
districts is meant to be permanent.
n113 Ga. Const., 1868, Art. III, § 3. The
extent of legislative authority to alter the apportionment is unclear, but it
appears that the three-tiered structure is meant to be permanent.
n114 See, e. g., Durfee, Apportionment of
Representation in the Legislature: A Study of State Constitutions, 43 Mich. L.
Rev. 1091, 1097 (1945); Short, States That Have Not Met Their Constitutional
Requirements, 17 Law & Contemp. Prob. 377 (1952); Harvey, Reapportionments
of State Legislatures -- Legal Requirements, 17 Law & Contemp. Prob. 364,
370 (1952). For an excellent case study of numerical inequalities deriving
solely from a one-member-per-county minimum provision in Ohio, see Aumann, Rural
Ohio Hangs On, 46 Nat. Mun. Rev. 189, 191-192 (1957).
n115 Dauer and Kelsay, Unrepresentative States, 44
Nat. Mun. Rev. 571, 574 (1955). (This is
the effect of a later Georgia constitutional provision, Ga. Const., 1945,
§ 2-1501, substantially similar to that
of 1868.) The same three-tiered system has subsequently been adopted in
Florida, Fla. Const., 1885, Art. VII, § §
3, 4, where its effects have been inequalities of the order of eighty to
one. Dauer and Kelsay, supra, at
575, 587.
C. The constitutions n116 of the
thirteen States which Congress admitted to the Union after the ratification of
the Fourteenth Amendment showed a similar pattern. Six of them required or permitted
apportionment of both Houses by population, subject only to qualifications
concerning local boundaries. n117 Wyoming, apportioning by population,
guaranteed to each of its counties at least one seat in each House, n118 and
Idaho, which prescribed (after the first legislative session) that
apportionment should be "as may be provided by law," gave each county
at least one representative. n119 In Oklahoma, House members were apportioned
among counties so as to give one
[*318] seat for half a ratio, two
for a [***744] ratio and three-quarters, and one for each
additional ratio up to a maximum of seven representatives per county. n120
Montana required reapportionment of its House on the basis of periodic
enumerations according to ratios to be fixed by law n121 but its counties were
represented as counties in the Senate, each county having one senator. n122
Alaska n123 and [**765] Hawaii n124 each apportioned a number of
senators among constitutionally fixed districts; their respective Houses were
to be periodically reapportioned by population, subject to a moiety rule in
Alaska n125 and to Hawaii's guarantee of one representative to each of four
constitutionally designated areas. n126 The Arizona Constitution assigned
representation to each county in each house, giving one or two senators and
from one to seven representatives to each, and making no provision for
reapportionment. n127
n116 The constitutions discussed are those under which
the new States entered the Union.
n117 Colo. Const., 1876, Art. V, § § 45, 47; N. D. Const., 1889, Art. 2, § § 29, 35; S. D. Const., 1889, Art. III, § 5; Wash. Const., 1889, Art. II, § § 3, 6; Utah Const., 1895, Art. IX, § § 2, 4; N. M. Const., 1911, Art. IV, following
§ 41.
The Colorado and Utah Constitutions provide for reapportionment
"according to ratios to be fixed by law" after periodic census and
enumeration. In New Mexico the legislature is authorized, but not commanded, to
reapportion periodically. North Dakota
does not in terms demand equality in House representation; members are to be assigned
among the several senatorial districts, which are of equal population.
n118 Wyo. Const., 1889, Art. III, Legislative
Department, § 3; Art. III,
Apportionment, § § 2, 3.
n119 Idaho Const., 1889, Art. III, § 4.
n120 Okla. Const., 1907, Art. V, § 10 (b) to (j). See Art. V, § § 9 (a), 9 (b) for Senate apportionment based
on numbers.
n121 Mont. Const., 1889, Art. VI, § § 2, 3.
n122 Mont. Const., 1889, Art. V, § 4; Art. VI, §
4. The effective provisions are,
first, that there shall be no more than one senator from each county, and, second,
that no senatorial district shall consist of more than one county.
n123 Alaska Const., 1956, Art. VI, § 7; Art. XIV, § 2. The
exact boundaries of the districts may be modified to conform to changes in
House districts, but their numbers of senators and their approximate perimeters
are to be preserved.
n124 Hawaii Const., 1950, Art. III, § 2.
n125 Alaska Const., 1956, Art. VI, § § 3, 4, 6.
The method of equal proportion is used.
n126 Hawaii Const., 1950, Art. III, § 4. The
method of equal proportions is used, and, for sub-apportionment within the four
"basic" areas, a form of moiety rule obtains.
n127 Ariz. Const., 1910, Art. IV, Pt. 2, § 1. On
the basis of 1910 census figures, this apportionment yielded, for example, a
senatorial ratio differential of more than four to one between Mohave and
Cochise or between Mohave and Maricopa Counties. II Thirteenth Census of the United States
(1910), 71-73.
[*319]
4. Contemporary apportionment. Detailed recent studies are available to
describe the present-day constitutional and statutory status of apportionment
in the fifty States. n128 They demonstrate a decided twentieth-century trend
away from population as the exclusive base of representation. Today, only a dozen state constitutions
provide for periodic legislative reapportionment of both houses by a
substantially unqualified application of the population standard, n129 and only
about a dozen more prescribe such reapportionment for even a single
chamber. "Specific provision for
county representation in at least one house of the state legislature has been
increasingly adopted since the end of the 19th century. . . ." n130 More
than twenty States now guarantee each county at least one seat in one of their
houses regardless of population, and in nine others county or town units are
given equal representation in one legislative branch, whatever the number of
each unit's inhabitants. Of course,
numerically considered, "These provisions invariably result in
over-representation [***745] of the least populated areas. . . ."
n131 And in an effort to curb the political dominance of metropolitan regions,
at least ten States now limit the maximum entitlement of any single county (or,
in some cases, city) [*320] in one legislative house -- another source of
substantial numerical disproportion. n132
n128 The pertinent state constitutional provisions are
set forth in tabular form in XIII Book of the States (1960-1961), 54-58; and
Greenfield, Ford and Emery, Legislative Reapportionment: California in National
Perspective (University of California, Berkeley, 1959), 81-85. An earlier treatment now outdated in several
respects but still useful is Durfee, supra, note 114. See discussions in Harvey, supra, note
114; Shull, Political and Partisan Implications of State Legislative
Apportionment, 17 Law & Contemp. Prob. 417, 418-421 (1952).
n129 Nebraska's unicameral legislature is included in
this count.
n130 Greenfield, Ford and Emery, supra, note
128, at 7.
n131 Harvey, supra, note 114, at 367. See Tabor, The Gerrymandering of State and
Federal Legislative Districts, 16 Md. L. Rev. 277, 282-283 (1956).
n132 See, e. g., Mather and Ray, The Iowa
Senatorial Districts Can Be Reapportioned -- A Possible Plan, 39 Iowa L. Rev.
535, 536-537 (1954).
Moreover, it is common knowledge
that the legislatures have not kept reapportionment up to date, even where
state constitutions in terms require it. n133 In particular, the pattern of
according greater [**766] per capita representation to rural,
relatively sparsely populated areas -- the same pattern which finds expression
in various state constitutional provisions, n134 and which has been given effect
in England and elsewhere n135 -- has, in some of the States, been made the law
by legislative inaction in the face of
[*321] population shifts. n136
Throughout the country, urban and suburban areas tend to be given higher
representation ratios than do rural areas. n137
n133 See, e. g., Walter, Reapportionment and
Urban Representation, 195 Annals of the American Academy of Political and
Social Science 11, 12-13 (1938); Bone, supra, note 87. Legislative inaction and state constitutional
provisions rejecting the principle of equal numbers have both contributed to
the generally prevailing numerical inequality of representation in this
country. Compare Walter, supra,
with Baker, One Vote, One Value, 47 Nat. Mun. Rev. 16, 18 (1958).
n134 See, e. g., Griffith 116-117; Luce
364-367, 370; Merriam, American Political Ideas (1929), 244-245; Legislation,
Apportionment of the New York State Senate, 31 St. John's L. Rev. 335, 341-342
(1957).
n135 In 1947, the Boundary Commission for England,
". . . impressed by the advantages of accessibility [that large compact
urban regions] . . . enjoy over widely scattered rural areas . . . came to the
conclusion that they could conveniently support electorates in excess of the
electoral quota, and would in the majority of cases prefer to do so rather than
suffer severance of local unity for parliamentary purposes" -- that
"in general urban constituencies could more conveniently support large
electorates than rural constituencies . . . ." Initial Report of the
Boundary Commission for England [Cmd. 7260] (1947), 5. See also Mackenzie 110-111; De Grazia,
General Theory of Apportionment, 17 Law & Contemp. Prob. 256, 261-262
(1952).
n136 See Walter, supra, note 133; Walter,
Reapportionment of State Legislative Districts, 37 Ill. L. Rev. 20, 37-38
(1942). The urban-rural conflict is often the core of apportionment
controversy. See Durfee, supra,
note 114, at 1093-1094; Short, supra, note 114, at 381.
n137 Baker, Rural Versus Urban Political Power (1955),
11-19; MacNeil, Urban Representation in State Legislatures, 18 State Government
59 (1945); United States Conference of Mayors, Government Of the People, By the
People, For the People (ca. 1947).
The stark fact is that if among
the numerous widely varying principles and practices that control state
legislative apportionment today there is any generally prevailing feature, that
feature is geographic inequality in relation to the population standard. n138
Examples [***746] could be endlessly multiplied. In New Jersey, counties of [*322]
thirty-five thousand and of more than nine hundred and five thousand
inhabitants respectively each have a single senator. n139 Representative
districts [**767] in Minnesota range from 7,290 inhabitants to
107,246 inhabitants. n140 Ratios of senatorial representation in California
vary as much as two hundred and ninety-seven to one. n141 In Oklahoma, the
range is ten to one for House constituencies and roughly sixteen to one for
Senate constituencies. n142 Colebrook, Connecticut -- population 592 -- elects
two House representatives; Hartford -- population 177,397 -- also elects two.
n143 The first, third and fifth of these examples are the products of
constitutional provisions which subordinate population to regional
considerations in apportionment; the second is the result of legislative
inaction; the fourth derives from both constitutional and legislative
sources. A survey made in 1955, in sum,
reveals that less than thirty percent of the population inhabit districts
sufficient to elect a House majority in thirteen States and a Senate majority
in nineteen States. n144 These figures show more than individual variations
from a generally accepted standard of electoral equality. They show that there is not -- as there has
never been -- a standard by [*323] which the place of equality as a factor in
apportionment can be measured.
n138 See, in addition to the authorities cited in
notes 130, 131, 136 and 137, supra, and 140 to 144, infra, (all
containing other examples than those remarked in text), Hurst, The Growth of
American Law, The Law Makers (1950), 41-42; American Political Science Assn.,
Committee on American Legislatures, American State Legislatures (Zeller ed.
1954), 34-35; Gosnell, Democracy, The Threshold of Freedom (1948), 179-181;
Lewis, Legislative Apportionment and the Federal Courts, 71 Harv. L. Rev. 1057,
1059-1064 (1958); Friedman, Reapportionment Myth, 49 Nat. Civ. Rev. 184,
185-186 (1960); 106 Cong. Rec. 14901-14916 (remarks of Senator Clark and
supporting materials); H. R. Rep. No. 2533, 85th Cong., 2d Sess. 24; H. R. Doc.
No. 198, 84th Cong., 1st Sess. 38-40; Hadwiger, Representation in the Missouri
General Assembly, 24 Mo. L. Rev. 178, 180-181 (1959); Hamilton, Beardsley and
Coats, Legislative Reapportionment in Indiana: Some Observations and a
Suggestion, 35 Notre Dame Law. 368-370
(1960); Corter, Pennsylvania Ponders Apportionment, 32 Temple L. Q. 279, 283-288
(1959). Concerning the classical gerrymander, see Griffith, passim; Luce
395-404; Brooks, Political Parties and Electoral Problems (3d ed. 1933),
472-481. For foreign examples of
numerical disproportion, see Hogan, Election and Representation (1945), 95;
Finer, Theory and Practice of Modern Government (Rev. ed. 1949), 551-552.
n139 Baker, supra, note 137, at 11. Recent New Jersey legislation provides for
reapportionment of the State's lower House by executive action following each
United States census subsequent to that of 1960. N. J. Laws 1961, c. 1. The apportionment is to be made on the basis
of population, save that each county is assured at least one House seat. In the
State's Senate, however, by constitutional command, each county elects a single
senator, regardless of population. N. J.
Const., 1947, Art. IV, § II, par. 1.
n140 Note, 42 Minn. L. Rev. 617, 618-619 (1958).
n141 Greenfield, Ford and Emery, supra, note
128, at 3.
n142 University of Oklahoma, Bureau of Government
Research, The Apportionment Problem in Oklahoma (1959), 16-29.
n143 1 Labor's Economic Rev. 89, 96 (1956).
n144 Dauer and Kelsay, Unrepresentative States, 44
Nat. Mun. Rev. 571, 572, 574 (1955).
Manifestly, the Equal Protection
Clause supplies no clearer guide for judicial examination of apportionment
methods than would the Guarantee Clause itself.
Apportionment, by its character, is a subject of extraordinary
complexity, involving -- even after the fundamental theoretical issues
concerning what is to be represented in a representative legislature have been
fought out or compromised -- considerations of geography, demography, electoral
convenience, economic and social cohesions or divergencies among particular
local groups, communications, the practical effects of political institutions
like the lobby and the city machine, ancient traditions and ties of settled
usage, respect for proven incumbents of
[***747] long experience and
senior status, mathematical mechanics, censuses compiling relevant data, and a
host of others. n145 [*324] Legislative responses [**768]
throughout the country to the reapportionment demands of the 1960 Census
have glaringly confirmed that these are not factors that lend themselves to
evaluations of a nature that are the staple of judicial determinations or for
which judges are equipped to adjudicate by legal training or experience or
native wit. And this is the more so true
because in every strand of this complicated, intricate web of values meet the
contending forces of partisan politics. n146 The practical significance of apportionment
is that the next election results may differ because of it. Apportionment battles are overwhelmingly
party or intra-party contests. n147 It will add a virulent source of friction
and tension in federal-state relations to embroil the federal judiciary in
them. n148
n145 See the Second Schedule to the House of Commons
(Redistribution of Seats) Act, 1949, 12 & 13 Geo. VI, c. 66, as amended by
the House of Commons (Redistribution of Seats) Act, 1958, 6 & 7 Eliz. II,
c. 26, § 2, and the English experience
described in text at notes 50 to 61, supra. See also the Report of the Assembly Interim
Committee on Elections and Reapportionment, California Assembly (1951)
(hereafter, California Committee Report), 37: "The geographic -- the
socio-economic -- the desires of the people -- the desires of the elected
officeholders -- the desires of political parties -- all these can and do
legitimately operate not only within the framework of the 'relatively equal in
population districts' factor, but also within the factors of contiguity and
compactness. The county and Assembly
line legal restrictions operate outside the framework of theoretically 'equal
in population districts.' All the factors might conceivably have the same
weight in one situation; in another, some factors might be considerably more
important than others in making the final determination." A Virginia
legislative committee adverted to ". . . many difficulties such as natural
topographical barriers, divergent business and social interests, lack of communication
by rail or highway, and disinclinations of communities to breaking up political
ties of long standing, resulting in some cases of districts requesting to
remain with populations more than their averages rather than have their equal
representation with the changed conditions." Report of the Joint Committee
on the Re-apportionment of the State into Senatorial and House Districts,
Virginia General Assembly, House of Delegates, H. Doc. No. 9 (1922), 1-2. And the Tennessee State Planning Commission,
concerning the problem of congressional redistricting in 1950, spoke of a
"tradition [which] relates to the sense of belonging -- loyalties to
groups and items of common interest with friends and fellow citizens of like
circumstance, environment or region." Tennessee State Planning Commission,
Pub. No. 222, Redistricting for Congress (1950), first page.
n146 See, e. g., California Committee Report,
at 52.
". . . The reapportionment process is, by its
very nature, political. . . . There will
be politics in reapportionment as long as a representative form of government
exists . . . .
"It is impossible to draw a district boundary
line without that line's having some political significance. . . ."
n147 See, e. g., Celler, Congressional
Apportionment -- Past, Present, and Future, 17 Law & Contemp. Prob. 268
(1952), speaking of the history of congressional apportionment:
". . . A mere reading of the debates [from the
Constitutional Convention down to contemporary Congresses] on this question of
apportionment reveals the conflicting interests of the large and small states
and the extent to which partisan politics permeates the entire problem."
n148 See Standards for Congressional Districts
(Apportionment), Hearings before Subcommittee No. 2 of the Committee on the
Judiciary, House of Representatives, 86th Cong., 1st Sess. 23, concerning a
proposed provision for judicial enforcement of certain standards in the laying
out of districts:
"Mr. KASEM.
You do not think that that [a provision embodying the language: 'in as
compact form as practicable'] might result in a decision depending upon the
political inclinations of the judge?
"Mr. CELLER.
Are you impugning the integrity of our Federal judiciary?
"Mr. KASEM.
No; I just recognize their human frailties."
For an instance of a court torn, in fact or fancy,
over the political issues involved in reapportionment, see State ex rel.
Lashly v. Becker, 290 Mo. 560, 235 S. W. 1017, and especially the
dissenting opinion of Higbee, J., 290 Mo., at 613, 235 S. W., at 1037.
[*325]
IV.
[***748]
Appellants, however, contend that the federal courts may provide the
standard which the Fourteenth Amendment lacks by reference to the provisions of
the constitution of Tennessee. The
argument is that although the same or greater disparities of electoral strength
may be suffered to exist immune from federal judicial review in States where
they result from apportionment legislation consistent with state constitutions,
the Tennessee Legislature may not abridge the rights which, on its face, its
own constitution appears to give, without by that act denying equal protection
of the laws. It is said that the law of
Tennessee, as expressed by the words of its written constitution, has made the
basic choice among policies in favor of representation proportioned to
population, and that it is no longer open to the State to allot its voting
power on other principles.
This reasoning does not bear
analysis. Like claims invoking state
constitutional requirement have been rejected here and for good reason. It is settled that whatever federal
consequences may derive from a discrimination worked by a state [**769]
statute must be the same as if the same discrimination were written into
the [*326] State's fundamental law. Nashville, C. & St. L. R. Co. v. Browning,
310 U.S. 362. And see Castillo v. McConnico, 168 U.S. 674; Coulter
v. Louisville & N. R. Co., 196 U.S. 599, 608-609; Owensboro
Waterworks Co. v. Owensboro, 200 U.S. 38; Hebert v. Louisiana,
272 U.S. 312, 316-317; Snowden v. Hughes, 321 U.S. 1, 11.
Appellants complain of a practice which, by their own allegations, has been the
law of Tennessee for sixty years. They
allege that the Apportionment Act of 1901 created unequal districts when passed
and still maintains unequal districts.
They allege that the Legislature has since 1901 purposefully retained
unequal districts. And the Supreme Court
of Tennessee has refused to invalidate the law establishing these unequal
districts. Kidd v. McCanless,
200 Tenn. 273, 292 S. W. 2d 40; appeal dismissed here in 352 U.S. 920. In these
circumstances, what was said in the Browning case, supra, at 369,
clearly governs this case:
". . . Here, according to petitioner's own claim, all the organs
of the state are conforming to a practice, systematic, unbroken for more than
forty years, and now questioned for the first time. It would be a narrow conception of
jurisprudence to confine the notion of 'laws' to what is found written on the
statute books, and to disregard the gloss which life has written upon it. Settled state practice cannot supplant
constitutional guarantees, but it can establish what is state law. The Equal Protection Clause did not write an
empty formalism into the Constitution.
Deeply embedded traditional ways of carrying out state policy, such as
those of which petitioner complains,
[***749] are often tougher and
truer law than the dead words of the written text. . . . The Equal Protection Clause is not a command
of candor. . . ."
[*327] Tennessee's law and its policy respecting
apportionment are what 60 years of practice show them to be, not what
appellants cull from the unenforced and, according to its own judiciary,
unenforceable words of its Constitution.
The statute comes here on the same footing, therefore, as would the
apportionment laws of New Jersey, California or Connecticut, n149 and is
unaffected by its supposed repugnance to the state constitutional language on
which appellants rely. n150
n149 See text at notes 139-143, supra.
n150 Decisions of state courts which have entertained
apportionment cases under their respective state constitutions do not, of
course, involve the very different considerations relevant to federal judicial
intervention. State-court adjudication
does not involve the delicate problems of federal-state relations which would
inhere in the exercise of federal judicial power to impose restrictions upon
the States' shaping of their own governmental institutions. Moreover, state constitutions generally speak
with a specificity totally lacking in attempted utilization of the generalities
of the Fourteenth Amendment to apportionment matters. Some expressly commit apportionment to state
judicial review, see, e. g., N. Y. Const., 1938, Art. III, § 5, and even where they do not, they do precisely
fix the criteria for judicial judgment respecting the allocation of
representative strength within the electorate.
See, e. g., Asbury Park Press. Inc., v. Woolley, 33 N. J.
1, 161 A. 2d 705.
In another aspect, however, the Kidd
v. McCanless case, supra, introduces a factor peculiar to this
litigation, which only emphasizes the duty of declining the exercise of federal
judicial jurisdiction. In all of the
apportionment cases which have come before the Court, a consideration which has
been weighty in determining their non-justiciability [**770]
has been the difficulty or impossibility of devising effective judicial
remedies in this class of case. An
injunction restraining a general election unless the legislature reapportions
would paralyze the critical centers of a State's political system and threaten
political dislocation whose consequences are not foreseeable. A declaration devoid [*328]
of implied compulsion of injunctive or other relief would be an idle
threat. n151 Surely a Federal District Court could not itself remap the State:
the same complexities which impede effective judicial review of apportionment a
fortiori make impossible a court's consideration of these imponderables as
an original matter. And the choice of
elections at large as opposed to elections by district, however unequal the
districts, is a matter of sweeping political judgment having enormous political
implications, the nature and reach of which are certainly beyond the informed
understanding of, and capacity for appraisal by, courts.
n151 Appellants' suggestion that, although no relief
may need be given, jurisdiction ought to be retained as a "spur" to
legislative action does not merit discussion.
In Tennessee, moreover, the McCanless
case has closed off several among even these unsatisfactory and dangerous modes
of relief. That case was a suit in the
state courts attacking the 1901 Reapportionment Act and seeking a declaration
and an injunction of the Act's enforcement or, alternatively, a writ of
mandamus compelling state election officials to hold the elections at large,
or, again alternatively, a decree of the court reapportioning the State. The Chancellor denied all coercive relief,
but entertained the suit for the purpose of rendering a [***750]
declaratory judgment. It was his
view that despite an invalidation of the statute under which the present
legislature was elected, that body would continue to possess de facto
authority to reapportion, and that therefore the maintaining of the suit did
not threaten the disruption of the government.
The Tennessee Supreme Court agreed that no coercive relief could be
granted; in particular, it said, "There is no provision of law for
election of our General Assembly by an election at large over the State."
200 Tenn., at 277, 292 S. W. 2d, at 42. Thus, a legislature elected at [*329]
large would not be the legally constituted legislative authority of the
State. The court reversed, however, the
Chancellor's determination to give declaratory relief, holding that the ground of
demurrer which asserted that a striking down of the statute would disrupt the
orderly process of government should have been sustained:
"(4) It seems obvious and we
therefore hold that if the Act of 1901 is to be declared unconstitutional, then
the de facto doctrine cannot be applied to maintain the present members
of the General Assembly in office. If
the Chancellor is correct in holding that this statute has expired by the
passage of the decade following its enactment then for the same reason all prior
apportionment acts have expired by a like lapse of time and are
non-existent. Therefore we would not
only not have any existing members of the General Assembly but we would have no
apportionment act whatever under which a new election could be held for the
election of members to the General Assembly.
. . . .
"The ultimate result of
holding this Act unconstitutional by reason of the lapse of time would be to
deprive us of the present Legislature and the means of electing a new one and
ultimately bring about the destruction of the State itself." 200 Tenn., at
281-282, 292 S. W. 2d, at 44.
A federal court enforcing the
Federal Constitution is not, to be sure, bound by the remedial doctrines of the
state courts. But it must consider as
pertinent to the propriety or impropriety of exercising [**771]
its jurisdiction those state-law effects of its decree which it cannot
itself control. A federal court cannot
provide the authority requisite to make a legislature the proper governing body
of the State of Tennessee. And it cannot
be doubted that the striking [*330] down of the statute here challenged on equal
protection grounds, no less than on grounds of failure to reapportion
decennially, would deprive the State of all valid apportionment legislation and
-- under the ruling in McCanless -- deprive the State of an effective
law-based legislative branch. Just such
considerations, among others here present, were determinative in Luther
v. Borden and the Oregon initiative cases. n152
n152 See note 24, supra.
Although the District Court had
jurisdiction in the very restricted sense of power to determine whether it
could adjudicate the claim, the case is of that class of political controversy
which, by the nature of its subject, is unfit for federal judicial action. The judgment of the District Court, in
dismissing the complaint for failure to state a claim on which relief can be
granted, should therefore be affirmed.
[***751]
Dissenting opinion of MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER
joins.
The dissenting opinion of MR.
JUSTICE FRANKFURTER, in which I join, demonstrates the abrupt departure the
majority makes from judicial history by putting the federal courts into this
area of state concerns -- an area which, in this instance, the Tennessee state
courts themselves have refused to enter.
It does not detract from his
opinion to say that the panorama of judicial history it unfolds, though
evincing a steadfast underlying principle of keeping the federal courts out of
these domains, has a tendency, because of variants in expression, to becloud
analysis in a given case. With due
respect to the majority, I think that has happened here.
Once one cuts through the thicket
of discussion devoted to "jurisdiction," "standing,"
"justiciability," and "political
[*331] question," there
emerges a straightforward issue which, in my view, is determinative of this
case. Does the complaint disclose a
violation of a federal constitutional right, in other words, a claim over which
a United States District Court would have jurisdiction under 28 U. S. C. § 1343 (3) and 42 U. S. C. § 1983? The majority opinion does not actually
discuss this basic question, but, as one concurring Justice observes, seems to
decide it "sub silentio." Ante, p. 261. However, in my opinion, appellants' allegations, accepting all of
them as true, do not, parsed down or as a whole, show an infringement by Tennessee
of any rights assured by the Fourteenth Amendment. Accordingly, I believe the
complaint should have been dismissed for "failure to state a claim upon
which relief can be granted." Fed. Rules Civ. Proc., Rule 12 (b)(6).
It is at once essential to recognize
this case for what it is. The issue here
relates not to a method of state electoral apportionment by which seats in the federal
House of Representatives are allocated, but solely to the right of a State to
fix the basis of representation in its own legislature. Until it is first decided to what extent that
right is limited by the Federal Constitution, and whether what Tennessee has
done or failed to do in this instance runs afoul of any such limitation, we need
not reach the issues of "justiciability" or "political
question" or any of the other considerations which in such cases as Colegrove
v. Green, 328 U.S. 549, led the Court to decline to adjudicate a
challenge to a state apportionment affecting seats in the federal House of
Representatives, in the absence of a controlling Act of Congress. See also Wood v. Broom, 287
U.S. 1.
[**772]
The appellants' claim in this case ultimately rests entirely on the
Equal Protection Clause of the Fourteenth Amendment. It is asserted that
Tennessee has violated the Equal Protection Clause by maintaining in effect
a [*332]
system of apportionment that grossly favors in legislative
representation the rural sections of the State as against its urban
communities. Stripped to its essentials
the complaint purports to set forth three constitutional claims of varying
breadth:
(1) The Equal Protection Clause
requires that each vote cast in state legislative elections be given
approximately equal weight.
(2) Short of this, the existing
apportionment of state legislators is so unreasonable as to amount to an
arbitrary and capricious act of classification on the part of the
Tennessee [***752] Legislature, which is offensive to the Equal
Protection Clause.
(3) In any event, the existing
apportionment is rendered invalid under the Fourteenth Amendment because it
flies in the face of the Tennessee Constitution.
For reasons given in MR. JUSTICE FRANKFURTER'S opinion, ante,
pp. 325-327, the last of these propositions is manifestly untenable, and need
not be dealt with further. I turn to the
other two.
I.
I can find nothing in the Equal
Protection Clause or elsewhere in the Federal Constitution which expressly or
impliedly supports the view that state legislatures must be so structured as to
reflect with approximate equality the voice of every voter. Not only is that
proposition refuted by history, as shown by my Brother FRANKFURTER, but it
strikes deep into the heart of our federal system. Its acceptance would require us to turn our backs
on the regard which this Court has always shown for the judgment of state
legislatures and courts on matters of basically local concern.
[*333]
In the last analysis, what lies at the core of this controversy is a
difference of opinion as to the function of representative government. It is surely beyond argument that those who
have the responsibility for devising a system of representation may permissibly
consider that factors other than bare numbers should be taken into
account. The existence of the United
States Senate is proof enough of that.
To consider that we may ignore the Tennessee Legislature's judgment in
this instance because that body was the product of an asymmetrical electoral
apportionment would in effect be to assume the very conclusion here
disputed. Hence we must accept the
present form of the Tennessee Legislature as the embodiment of the State's
choice, or, more realistically, its compromise, between competing political
philosophies. The federal courts have
not been empowered by the Equal Protection Clause to judge whether this
resolution of the State's internal political conflict is desirable or
undesirable, wise or unwise.
With respect to state tax statutes
and regulatory measures, for example, it has been said that the "day is
gone when this Court uses the . . . Fourteenth Amendment to strike down state
laws . . . because they may be unwise, improvident, or out of harmony with a
particular school of thought." Williamson v. Lee Optical Co.,
348 U.S. 483, 488. I would think it all the more compelling for us to follow this
principle of self-restraint when what is involved is the freedom of a State to
deal with so intimate a concern as the structure of its own legislative
branch. The Federal Constitution imposes
no limitation on the form which a state government may take other than
generally committing to the United States the duty to guarantee to every State
"a Republican Form of Government." And, as my Brother FRANKFURTER so
conclusively proves (ante, pp. 308-317), no intention to fix immutably
the [*334] means of selecting representatives for state
governments could have been in the minds of either the Founders or the
draftsmen of the Fourteenth Amendment.
[**773]
In short, there is nothing in the Federal Constitution to prevent a
State, acting not irrationally, from
[***753] choosing any electoral
legislative structure it thinks best suited to the interests, temper, and
customs of its people. I would have
thought this proposition settled by MacDougall v. Green, 335 U.S.
281, in which the Court observed (at p. 283) that to "assume that
political power is a function exclusively of numbers is to disregard the
practicalities of government," and reaffirmed by South v. Peters,
339 U.S. 276. A State's choice to distribute electoral strength among
geographical units, rather than according to a census of population, is
certainly no less a rational decision of policy than would be its choice to
levy a tax on property rather than a tax on income. Both are legislative judgments entitled to
equal respect from this Court.
II.
The claim that Tennessee's system
of apportionment is so unreasonable as to amount to a capricious classification
of voting strength stands up no better under dispassionate analysis.
The Court has said time and again
that the Equal Protection Clause does not demand of state enactments either
mathematical identity or rigid equality.
E. g., Allied Stores of Ohio v. Bowers, 358 U.S. 522,
527-528, and authorities there cited; McGowan v. Maryland, 366
U.S. 420, 425-426. All that is prohibited is "invidious discrimination"
bearing no rational relation to any permissible policy of the State. Williamson v. Lee Optical Co.,
supra, at 489. And in deciding whether such discrimination has been
practiced by a State, it must be borne in mind that a "statutory
discrimination will not be set aside if any state of facts reasonably may be
conceived [*335] to justify it." McGowan v. Maryland,
supra. It is not inequality alone that calls for a holding of
unconstitutionality; only if the inequality is based on an impermissible
standard may this Court condemn it.
What then is the basis for the
claim made in this case that the distribution of state senators and
representatives is the product of capriciousness or of some constitutionally
prohibited policy? It is not that
Tennessee has arranged its electoral districts with a deliberate purpose to
dilute the voting strength of one race, cf.
Gomillion v. Lightfoot, 364 U.S. 339, or that some
religious group is intentionally underrepresented. Nor is it a charge that the legislature has
indulged in sheer caprice by allotting representatives to each county on the
basis of a throw of the dice, or of some other determinant bearing no rational
relation to the question of apportionment. Rather, the claim is that the State
Legislature has unreasonably retained substantially the same allocation of
senators and representatives as was established by statute in 1901, refusing to
recognize the great shift in the population balance between urban and rural
communities that has occurred in the meantime.
It is further alleged that even as
of 1901 the apportionment was invalid,
in that it did not allocate state legislators among the counties in
accordance with the formula set out in Art. II, § 5, of the Tennessee Constitution. In support of this the appellants have
furnished a Table which indicates that as of 1901 six counties were
overrepresented and [***754] 11 were underrepresented. But that Table in fact shows nothing in the
way of significant discrepancy; in the instance of each county it is only one
representative who is either lacking or added.
And it is further perfectly evident that the variations are attributable
to nothing more than the circumstance that the then enumeration of voters
resulted in fractional remainders with respect to which the precise formula of
the Tennessee [**774] Constitution was in some [*336]
instances slightly disregarded.
Unless such de minimis departures are to be deemed of
significance, these statistics certainly provide no substantiation for the
charge that the 1901 apportionment was arbitrary and capricious. Indeed, they show the contrary.
Thus reduced to its essentials,
the charge of arbitrariness and capriciousness rests entirely on the consistent
refusal of the Tennessee Legislature over the past 60 years to alter a pattern
of apportionment that was reasonable when conceived.
A Federal District Court is asked
to say that the passage of time has rendered the 1901 apportionment obsolete to
the point where its continuance becomes vulnerable under the Fourteenth
Amendment. But is not this matter one that involves a classic legislative
judgment? Surely it lies within the province of a state legislature to conclude
that an existing allocation of senators and representatives constitutes a
desirable balance of geographical and demographical representation, or that in
the interest of stability of government it would be best to defer for some
further time the redistribution of seats in the state legislature.
Indeed, I would hardly think it
unconstitutional if a state legislature's expressed reason for establishing or
maintaining an electoral imbalance between its rural and urban population were
to protect the State's agricultural interests from the sheer weight of numbers
of those residing in its cities. A State
may, after all, take account of the interests of its rural population in the
distribution of tax burdens, e. g., American Sugar Rfg. Co. v. Louisiana,
179 U.S. 89, and recognition of the special problems of agricultural interests
has repeatedly been reflected in federal legislation, e. g.,
Capper-Volstead Act, 42 Stat. 388; Agricultural Adjustment Act of 1938, 52
Stat. 31. Even the exemption of
agricultural activities from state criminal statutes of otherwise general
application has not been deemed offensive to the Equal Protection Clause. [*337]
Tigner v. Texas, 310 U.S. 141. Does the Fourteenth
Amendment impose a stricter limitation upon a State's apportionment of
political representatives to its central government? I think not.
These are matters of local policy, on the wisdom of which the federal
judiciary is neither permitted nor qualified to sit in judgment.
The suggestion of my Brother
FRANKFURTER that courts lack standards by which to decide such cases as this,
is relevant not only to the question of "justiciability," but also,
and perhaps more fundamentally, to the determination whether any cognizable
constitutional claim has been asserted in this case. Courts are unable to decide when it is that
an apportionment originally valid becomes void because the factors entering
into such a decision are basically matters appropriate only for legislative
judgment. And so long as [***755]
there exists a possible rational legislative policy for retaining an
existing apportionment, such a legislative decision cannot be said to breach
the bulwark against arbitrariness and caprice that the Fourteenth Amendment
affords. Certainly, with all due
respect, the facile arithmetical argument contained in Part II of my Brother
CLARK's separate opinion (ante, pp. 253-258) provides no tenable basis
for considering that there has been such a breach in this instance. (See the Appendix to this opinion.)
These conclusions can hardly be
escaped by suggesting that capricious state action might be found were it to
appear that a majority of the Tennessee legislators, in refusing to consider
reapportionment, had been actuated by self-interest in perpetuating their own
political offices or by other unworthy or improper motives. Since Fletcher v. Peck, 6
Cranch 87, was decided many years ago, it has repeatedly been pointed out that
it is not the business of the federal
[**775] courts to inquire into
the personal motives of legislators. E.
g., Arizona v. California, 283 U.S. 423, 455 & n. 7. The
function of the federal judiciary ends in
[*338] matters of this kind once
it appears, as I think it does here on the undisputed facts, that the state
action complained of could have rested on some rational basis. (See the Appendix to this opinion.)
It is my view that the majority
opinion has failed to point to any recognizable constitutional claim alleged in
this complaint. Indeed, it is
interesting to note that my Brother STEWART is at pains to disclaim for himself,
and to point out that the majority opinion does not suggest, that the Federal
Constitution requires of the States any particular kind of electoral
apportionment, still less that they must accord to each voter approximately
equal voting strength. Concurring
opinion, ante, p. 265. But that
being so, what, may it be asked, is left of this complaint? Surely the bare allegations that the existing
Tennessee apportionment is "incorrect," "arbitrary,"
"obsolete" and "unconstitutional" -- amounting to nothing
more than legal conclusions -- do not themselves save the complaint from
dismissal. See Snowden v. Hughes,
321 U.S. 1; Collins v. Hardyman, 341 U.S. 651. Nor do those
allegations shift to the appellees the burden of proving the constitutionality
of this state statute; as is so correctly emphasized by my Brother STEWART (ante,
p. 266), this Court has consistently held in cases arising under the Equal
Protection Clause that "'the burden of establishing the unconstitutionality
of a statute rests on him who assails it.' Metropolitan Casualty Ins. Co.
v. Brownell, 294 U.S. 580, 584." (Emphasis added.) Moreover, the
appellants do not suggest that they could show at a trial anything beyond the
matters previously discussed in this opinion, which add up to nothing in the
way of a supportable constitutional challenge against this statute. And finally, the majority's failure to come
to grips with the question whether the complaint states a claim cognizable
under the Federal Constitution -- an issue necessarily presented by appellees'
motion to dismiss -- [*339] does not of course furnish any ground for
permitting this action to go to trial.
From a reading of the majority and
concurring opinions one will not find it difficult to catch the premises [***756]
that underlie this decision. The
fact that the appellants have been unable to obtain political redress of their
asserted grievances appears to be regarded as a matter which should lead the
Court to stretch to find some basis for judicial intervention. While the Equal Protection Clause is invoked,
the opinion for the Court notably eschews explaining how, consonant with past
decisions, the undisputed facts in this case can be considered to show a
violation of that constitutional provision.
The majority seems to have accepted the argument, pressed at the bar,
that if this Court merely asserts authority in this field, Tennessee and other
"malapportioning" States will quickly respond with appropriate
political action, so that this Court need not be greatly concerned about the
federal courts becoming further involved in these matters. At the same time the majority has wholly
failed to reckon with what the future may hold in store if this optimistic
prediction is not fulfilled. Thus, what
the Court is doing reflects more an adventure in judicial experimentation than
a solid piece of constitutional adjudication.
Whether dismissal of this case should have been for want of jurisdiction
or, as is suggested in Bell v. Hood, 327 U.S. 678, 682-683, for
failure of the complaint to state a claim upon which relief could be granted,
the judgment of the District Court was correct.
In conclusion, it is appropriate
to say that one need not agree, as a citizen, with what Tennessee has done or
failed to do, [**776] in order to deprecate, as a judge, what the
majority is doing today. Those observers
of the Court who see it primarily as the last refuge for the correction of all
inequality or injustice, no matter what its nature or source, will no doubt
applaud this decision and its break
[*340] with the past. Those who consider that continuing national
respect for the Court's authority depends in large measure upon its wise
exercise of self-restraint and discipline in constitutional adjudication, will
view the decision with deep concern.
I would affirm.
APPENDIX TO OPINION OF MR. JUSTICE
HARLAN.
THE INADEQUACY OF ARITHMETICAL
FORMULAS AS MEASURES OF THE RATIONALITY OF TENNESSEE'S APPORTIONMENT.
Two of the three separate
concurring opinions appear to concede that the Equal Protection Clause does not
guarantee to each state voter a vote of approximately equal weight for the
State Legislature. Whether the existing
Tennessee apportionment is constitutional is recognized to depend only on
whether it can find "any possible justification in rationality" (ante,
p. 265); it is to be struck down only if "the discrimination here does not
fit any pattern" (ante, p. 258).
One of the concurring opinions,
that of my Brother STEWART, suggests no reasons which would justify a finding
that the present distribution of state legislators is unconstitutionally
arbitrary. The same is true of the
majority opinion. My Brother CLARK, on
the other hand, concludes that "the apportionment picture in Tennessee is
a topsy-turvical of gigantic proportions" (ante, p. 254), solely on
the basis of certain statistics presented in the text of his separate opinion
and included in a more extensive Table appended thereto. In my view, that analysis is defective not
only because the [***757] "total representation" formula set
out in footnote 7 of the opinion (ante, p. 255), rests on faulty
mathematical foundations, but, more basically, because the approach taken
wholly [*341] ignores all other factors justifying a
legislative determination of the sort involved in devising a proper
apportionment for a State Legislature.
In failing to take any of such
other matters into account and in focusing on a particular mathematical formula
which, as will be shown, is patently unsound, my Brother CLARK's opinion has, I
submit, unwittingly served to bring into bas-relief the very reasons that
support the view that this complaint does not state a claim on which relief
could be granted. For in order to
warrant holding a state electoral apportionment invalid under the Equal
Protection Clause, a court, in line with well-established constitutional
doctrine, must find that none of the permissible policies and none
of the possible formulas on which it might have been based could rationally
justify particular inequalities.
I.
At the outset, it cannot be denied
that the apportionment rules explicitly set out in the Tennessee Constitution
are rational. These rules are based on
the following obviously permissible policy determinations: (1) to utilize
counties as electoral units; (2) to prohibit the division of any county in the
composition of electoral districts; (3) to allot to each county that has a
substantial voting population -- at least two-thirds of the average voting
population per county -- a separate "direct representative"; (4) to
create "floterial" districts (multicounty representative districts)
made up of more than one county; and (5) to require that such districts be
composed of adjoining counties. n1 Such a framework unavoidably [*342]
[**777] leads to unreliable
arithmetic inequalities under any mathematical formula whereby the counties'
"total representation" is sought to be measured. It particularly results in egregiously
deceptive disparities if the formula proposed in my Brother CLARK's opinion is
applied.
n1 The relevant provisions of the Tennessee Constitution
are Art. II, § § 5 and 6:
"Sec. 5. Apportionment of representatives.
-- The number of Representatives shall, at the several periods of making the
enumeration, be apportioned among the several counties or districts, according
to the number of qualified voters in each; and shall not exceed seventy-five,
until the population of the State shall be one million and a half, and shall
never exceed ninety-nine; Provided, that any county having two-thirds of the
ratio shall be entitled to one member.
"Sec. 6. Apportionment of senators. -- The
number of Senators shall, at the several periods of making the enumeration, be
apportioned among the several counties or districts according to the number of
qualified electors in each, and shall not exceed one-third the number of
representatives. In apportioning the
Senators among the different counties, the fraction that may be lost by any
county or counties, in the apportionment of members to the House of
Representatives, shall be made up to such county or counties in the Senate, as
near as may be practicable. When a
district is composed of two or more counties, they shall be adjoining; and no
counties shall be divided in forming a district."
That formula computes a county's
"total representation" by adding (1) the number of "direct
representatives" the county is entitled to elect; (2) a fraction of any
other seats in the Tennessee House which are allocated to that county jointly
with one or more others in a "floterial district"; (3) triple the number
of senators the county is entitled to elect alone; and (4) triple a fraction of
any seats in the Tennessee Senate
[***758] which are allocated to
that county jointly with one or more others in a multicounty senatorial
district. The fractions used for items
(2) and (4) are computed by allotting to each county in a combined district an
equal share of the House or Senate seat, regardless of the voting
population of each of the counties that make up the election district. n2
n2 This formula is not clearly spelled out in the
opinion, but it is necessarily inferred from the figures that are
presented. Knox County, for example, is
said to have a "total representation" of 7.25. It elects (1) three direct representatives
(value 3.00); (2) one representative from a two-county district (value .50);
(3) one direct senator (value 3.00); and (4) one senator in a four-county
district (value .75). See Appendix to
opinion of MR. JUSTICE CLARK, ante, pp. 262-264.
[*343]
This formula is patently deficient in that it eliminates from consideration
the relative voting power of the counties that are joined together in a single
election district. As a result, the
formula unrealistically assigns to Moore County one-third of a senator, in
addition to its direct representative (ante, p. 255), although it must
be obvious that Moore's voting strength in the Eighteenth Senatorial District
is almost negligible. Since Moore County
could cast only 2,340 votes of a total eligible vote of 30,478 in the senatorial
district, it should in truth be considered as represented by one-fifteenth of a
senator. Assuming, arguendo, that any "total representation"
figure is of significance, Moore's "total representation" should be
1.23, not 2. n3
n3 If this "adjusted" formula for measuring
"total representation" is applied to the other "horribles"
cited in the concurring opinion (ante, p. 255), it reveals that these
counties -- which purportedly have equal "total representation" but
distinctly unequal voting population -- do not have the same "total
representation" at all. Rather than
having the same representation as Rutherford County, Moore County has only
about 40% of what Rutherford has.
Decatur County has only 55% of the representation of Carter County. While Loudon and Anderson Counties are
substantially underrepresented, this is because of their proximity to Knox
County, which outweighs their votes in the Sixth Senatorial District and in the
Eighth Floterial District.
The formula suggested by my
Brother CLARK must be adjusted regardless whether one thinks, as I assuredly do
not, that the Federal Constitution requires that each vote be given equal
weight. The correction is necessary
simply to reflect the real facts of political life. It may, of course, be true that the floterial
representative's "function
[*344] is to represent the whole
district" (ante, p. 256).
[**778] But can it be gainsaid
that so long as elections within the district are decided not by a county-unit
system, in which each county casts one vote, but by adding the total number of
individual votes cast for each candidate, the concern of the elected
representatives will primarily be with the most populous counties in the
district?
II.
I do not mean to suggest that any
mathematical formula, albeit an "adjusted" one, would be a proper
touchstone to measure the rationality of the present or of appellants' proposed
apportionment plan. For, as the Table
appended to my Brother CLARK's opinion so conclusively shows, whether one
applies the formula he suggests or one that is adjusted to reflect proportional
voting strength within an election district, no plan of apportionment
consistent with the principal policies of the Tennessee Constitution could
provide proportionately equal "total representation" for each of
Tennessee's 95 counties.
[***759]
The pattern suggested by the appellants in Exhibits "A" and
"B" attached to their complaint is said to be a "fair
distribution" which accords with the Tennessee Constitution, and under
which each of the election districts represents approximately equal voting
population. But even when tested by the
"adjusted" formula, the plan reveals gross "total
representation" disparities that would make it appear to be a "crazy
quilt." For example, Loudon County, with twice the voting population of
Humphreys County would have less representation than Humphreys, and
about one-third the representation of Warren County, which has only 73 more
voters. Among the more populous counties, similar discrepancies would
appear. Although Anderson County has
only somewhat over 10% more voters than Blount County, it would have [*345]
approximately 75% more representation.
And Blount would have approximately two-thirds the representation of
Montgomery County, which has about 13% less voters. n4
n4 These disparities are as serious, if not more so,
when my Brother CLARK's formula is applied to the appellants' proposal. For example, if the seven counties chosen by
him as illustrative are examined as they would be represented under the appellants'
distribution, Moore County, with a voting population of 2,340, is given more
electoral strength than Decatur County, with a voting population of 5,563. Carter County (voting population 23,302) has
20% more "total representation" than Anderson County (voting
population 33,990), and 33% more than Rutherford County (voting
population 25,316).
III.
The fault with a purely
statistical approach to the case at hand lies not with the particular
mathematical formula used, but in the failure to take account of the fact that
a multitude of legitimate legislative policies, along with circumstances of
geography and demography, could account for the seeming electoral disparities
among counties. The principles set out
in the Tennessee Constitution are just some of those that were deemed
significant. Others may have been
considered and accepted by those entrusted with the responsibility for
Tennessee's apportionment. And for the purposes of judging constitutionality
under the Equal Protection Clause it must be remembered that what is
controlling on the issue of "rationality" is not what the State
Legislature may actually have considered but what it may be deemed
to have considered.
For example, in the list of
"horribles" cited by my Brother CLARK (ante, p. 255), all
the "underrepresented" counties are semiurban: all contain
municipalities of over 10,000 population. n5 This is not to say, however, that
the [*346] presence of any such municipality within a
county necessarily demands that its proportional representation be reduced in
order to render it consistent with an "urban versus rural" [**779]
plan of apportionment. Other considerations may intervene and outweigh
the Legislature's desire to distribute seats so as to achieve a proper balance
between urban and rural interests. The
size of a county, in terms of its total area, may be a factor. n6 Or the
location within a county of some major industry may be thought to [***760]
call for dilution of voting strength. n7 Again, the combination of
certain smaller counties with their more heavily populated neighbors in
senatorial or "floterial" districts may result in apparent arithmetic
inequalities. n8
n5 Murfreesboro, Rutherford County (pop. 16,017);
Elizabethton, Carter County (pop. 10,754); Oak Ridge, Anderson County (pop.
27,387). Tennessee Blue Book, 1960, pp.
143-149.
n6 For example, Carter and Washington Counties are
each approximately 60% as large as Maury and Madison Counties in terms of
square miles, and this may explain the disparity between their "total representation"
figures.
n7 For example, in addition to being
"semi-urban," Blount County is the location of the City of Alcoa,
where the Aluminum Company of America has located a large aluminum smelting and
rolling plant. This may explain the
difference between its "total representation" and that of Gibson
County, which has no such large industry and contains no municipality as large
as Maryville.
n8 For example, Chester County (voting population
6,391) is one of those that is presently said to be overrepresented. But under the appellants' proposal, Chester
would be combined with populous Madison County in a "floterial
district" and with four others, including Shelby County, in a senatorial
district. Consequently, its total
representation according to the Appendix to my Brother CLARK's opinion would be
.19. (Ante, p. 262.) This would
have the effect of disenfranchising all the county's voters. Similarly, Rhea
County's almost 9,000 voters would find their voting strength so diluted as to
be practically nonexistent.
More broadly, the disparities in
electoral strength among the various counties in Tennessee, both those relied
upon by my Brother CLARK and others, may be
[*347] accounted for by various
economic, n9 political, n10 and geographic n11 considerations. No allegation is made by the appellants that
the existing apportionment is the result of any other forces than are always at
work in any legislative process; and the record, briefs, and arguments in this
Court themselves attest to the fact that the appellants could put forward
nothing further at a trial.
n9 For example, it is primarily the eastern portion of
the State that is complaining of malapportionment (along with the Cities of
Memphis and Nashville). But the eastern
section is where industry is principally located and where population density,
even outside the large urban areas, is highest.
Consequently, if Tennessee is apportioning in favor of its agricultural
interests, as constitutionally it was entitled to do, it would necessarily reduce
representation from the east.
n10 For example, sound political reasons surely
justify limiting the legislative chambers to workable numbers; in Tennessee,
the House is set at 99 and the Senate at 33.
It might have been deemed desirable, therefore, to set a ceiling on
representation from any single county so as not to deprive others of individual
representation. The proportional
discrepancies among the four counties with large urban centers may be
attributable to a conscious policy of limiting representation in this manner.
n11 For example, Moore County is surrounded by four
counties each of which has sufficient voting population to exceed two-thirds of
the average voting population per county (which is the standard prescribed by
the Tennessee Constitution for the assignment of a direct representative), thus
qualifying for direct representatives.
Consequently Moore County must be assigned a representative of its own
despite its small voting population because it cannot be joined with any of its
neighbors in a multicounty district, and the Tennessee Constitution prohibits
combining it with nonadjacent counties.
See note 1, supra.
By disregarding the wide variety
of permissible legislative considerations that may enter into a state electoral
apportionment my Brother CLARK has turned a highly complex process into an
elementary arithmetical puzzle.
[*348] It is only by blinking
reality that such an analysis can stand and that the essentially legislative
determination can be made the subject of judicial inquiry.
[**780]
IV.
Apart from such policies as those
suggested which would suffice to justify particular inequalities, there is a
further consideration which could rationally have led the Tennessee
Legislature, in the exercise of a deliberate
[***761] choice, to maintain the
status quo. Rigidity of an apportionment
pattern may be as much a legislative policy decision as is a provision for
periodic reapportionment. In the interest of stability, a State may write into
itsfundamental law a permanent distribution of legislators among its various
election districts, thus forever ignoring shifts in population. Indeed, several States have achieved this
result by providing for minimum and maximum representation from various
political subdivisions such as counties, districts, cities, or towns. See Harvey,
Reapportionments of State Legislatures -- Legal Requirements, 17 Law
& Contemp. Probs. (1952), 364, 368-372.
It is said that one cannot find
any rational standard in what the Tennessee Legislature has failed to do over
the past 60 years. But surely one need
not search far to find rationality in the Legislature's continued refusal to
recognize the growth of the urban population that has accompanied the
development of industry over the past half decade. The existence of slight disparities between
rural areas does not overcome the fact that the foremost apparent legislative
motivation has been to preserve the electoral strength of the rural interests
notwithstanding shifts in population.
And I understand it to be conceded by at least some of the majority that
this policy is not [*349] rendered unconstitutional merely because it
favors rural voters.
Once the electoral apportionment
process is recognized for what it is -- the product of legislative
give-and-take and of compromise among policies that often conflict -- the
relevant constitutional principles at once put these appellants out of the
federal courts.