The Online Library of Liberty

A project of Liberty Fund, Inc.

• Foreword
• Preface to the Second Edition
• Acknowledgments
• Abbreviations
• Part I
• 1: Introduction
• Supplementary Note On the Introduction
• 2: “privileges Or Immunities”
• Supplementary Note On the Civil Rights Act and the Fourteenth Amendment: Fundamental Rights
• 3: The “privileges Or Immunities of a Citizen of the United States”
• 4: Negro Suffrage Was Excluded
• Supplementary Note On Suffrage
• 5: Reapportionment
• 6: The “open-ended” Phraseology Theory
• 7: Segregated Schools
• Supplementary Note On Segregated Schools
• 8: Incorporation of the Bill of Rights In the Fourteenth Amendment
• Supplementary Note On Incorporation
• 9: Opposition Statements Examined
• 10: “equal Protection of the Laws”
• 11: “due Process of Law”
• 12: Section Five: “congress Shall Enforce”
• 13: Incorporation of Abolitionist Theory In Section One
• Supplementary Note On Abolitionist Influence
• Part Ii
• 14: From Natural Law to Libertarian Due Process
• Supplementary Note On Natural Law and the Constitution *
• 15: “the Rule of Law”
• 16: The Judiciary Was Excluded From Policymaking
• Supplementary Note On Exclusion of the Judiciary
• 17: The Turnabout of the Libertarians
• 18: Liberals and the Burger Court
• 19: The Legitimacy of Judicial Review
• Supplementary Note On the Role of the Court
• 20: Why the “original Intention”?
• Supplementary Note On Original Intention
• 21: Arguments For Judicial Power of Revision
• 22: “trial By Jury”: Six Or Twelve Jurors?
• 23: Conclusion
• Supplementary Note On the Conclusion
• Appendix A: Van Alstyne’s Critique of Justice Harlan’s Dissent
• Appendix B: Judicial Administration of Local Matters

5

Reapportionment

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

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

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

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

When Van Alstyne dismissed Harlan’s reading of the §2 phrase “or in any way abridged” because “once the congressional history” of this phrase is “canvassed . . . it becomes clear that the phrase had nothing at all to do with malapportionment,” he scuttled his whole case. For, by the same token, the history of the equal protection clause likewise “had nothing at all to do with malapportionment.” “There is,” he states, “no evidence that §2 was applicable to abridgment of the right to vote resulting from malapportionment of state legislatures.” “It is even likely,” he avers, “that had the subject been discussed there might have been a disavowal of an intention to apply the Equal Protection Clause to malapportionment.” But “hypothetical answers to hypothetical questions . . . would be a most dubious basis for expounding the content of ‘equal protection’ one hundred years later.” 17 There is no need to speculate because Blaine and others plainly recognized malapportionment as an existing practice that was left untouched. I, too, prefer to eschew speculation, particularly when it is unnecessary. One who would bring an unmentioned departure from settled practice within the perimeter of the Amendment has the burden of proof, made heavier here by (1) the fact that Negro suffrage, on which the Court rested its case for reapportionment, was unmistakably excluded; (2) the plainly expressed attachment of the framers to State sovereignty and their intention to intrude no further than the limits of the Civil Rights Act; and (3) the presumption that a diminution of powers reserved to the States by the Tenth Amendment will be clearly stated.18

In one form or another, Van Alstyne would put asunder what the Warren Court hath joined; he would jettison the Court’s “one man, one vote” postulate. Granting arguendo State power “with respect to outright denials of the right to vote,” he asks, “is it equally so with respect to partial disfranchisement through malapportionment?” 19 The simple answer is that the greater includes the less.20 If a State may altogether deny the vote, it may dilute it. It was in these terms that Chief Justice Warren rationalized reapportionment: the Constitution, he held, protects the right to “vote,” the “right to have one’s vote counted.” And “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” 21 His premise—that the Constitution, that is, the Fourteenth Amendment, protects the right to vote—is contradicted by historical facts. But his logic is impeccable and may be stated inversely: given a right to deny suffrage, it follows that there is a right to dilute it.

Republican Form of Government

One of the “other” powers invoked by radical extremists was the guarantee of a “republican form of government.” 22 Senator Sumner, its leading advocate, could do no better than to find it “obscure” and to write in 1865 that “the time has come to fix meaning to those words.” 23 They were not wrapped in obscurity by the Founders. In the Federal Convention, Edmund Randolph stated that “a republican government must be the basis of a national union; and no state in it ought to have it in their power to change its government into a monarchy.” 24 This was echoed by Madison in Federalist No. 43: “the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations . . . [the members of the Union have] the right to insist that the forms of government under which the compact was entered should be substantially maintained.” The guarantee “supposes a preexisting government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States they are guaranteed by the federal Constitution.” 25 Although Federalist No. 52 stated that the “definition of the right of suffrage is very justly regarded as a fundamental act of republican government,” it concluded that the right must be left to the States because “the different qualifications in the different States [could not be reduced] to one uniform rule.” 26 Finally, Federalist No. 54, alluding to the allocation of representation according to the number of inhabitants, added, “the right of choosing their allotted number in each State is to be exercised by such part of the inhabitants as the State itself may designate . . . In every State, a certain proportion of inhabitants are deprived of this right by the Constitution of the State.” 27

Fessenden therefore stood on solid ground when he rebutted Sumner’s reliance on the guarantee, saying, “in the very instrument in which the fathers provided that the United States should guaranty to every State a republican form of government they recognized the existence of slavery unmistakably . . . Did they then consider that the obligation to guaranty a republican form of government extended thus far, giving Congress the right to interfere in Virginia to examine her constitution?” When Sumner argued that the guarantee places Congress under a duty to “see that every man votes who ought to vote,” said Fessenden, “he goes considerably further than those who made the Constitution ever intended to go.” If a State “should choose to have a monarchy, or the controlling portion of the people should choose to have an oligarchy, it then becomes the duty of Congress to interfere.” 28 Such was the view of the Fathers, and it was reiterated by other leaders in the 39th Congress. Meeting a query whether a State would “cease to be republican” if it excluded a race from the franchise, Conkling responded that this “has always been permitted with universal acquiescence by the courts and the nation.” 29 On the admission of Tennessee without provision for Negro enfranchisement, Bingham said in July 1866 that if this was in violation of the guarantee, then Tennessee was in the company of many Northern States. His critics were defeated by a vote of 125 to 12.30 In the Senate, Trumbull stated, “most of us are here under republican forms of government, just like this in Tennessee.” 31

One of the dissentients, William Higby of California—whom Van Alstyne quotes as saying that no “State which excludes any class of citizens [from voting] on account of race or color is republican in form,” and that he was opposed to H.R. No. 51 because “it gives a power to the States to make governments that are not republican in form,” 32 —revealed tellingly that he was merely engaged in wishful thinking. He admitted that by his disenfranchisement test his own State of California is “not republican in form”: “I do not believe there is a single State in the Union, except it may be one of the New England States, which is an exception to that general rule . . . Now, sir, I am aware that the practice has been very different . . . from the establishment of the Government.” 33 When Ralph Hill of Indiana stated that, in placing the guarantee in the Constitution, the Framers “spoke with reference to such governments as then existed, and such as these same framers recognized for a long time afterwards as republican governments,” Higby replied: “that is a very good answer. It is an answer from a standpoint of seventy-five years ago. I speak from the standpoint of the present time.” 34 Like our contemporary apologists for a judicial revisionary power, Higby would displace the established, original meaning with his own new one. Given that the Northern States discriminated against voting by blacks, “they were as subject to reconstruction by the federal authority” as was the South. For Radicals, “this whole argument contained political dynamite”;35 and Higby himself admitted, “I do not know that there are half a dozen in this House who will sustain me.” 36 Like the 125 to 12 vote on the admission of Tennessee, Higby’s concession underscores the framers’ indifference to the dissentient views on which Van Alstyne largely pitches his case.

Is it to be wondered that the Court, as Carl Auerbach noted, “agreed in Baker v. Carr that ‘any reliance’ on the Guarantee clause would be futile?” Auerbach pointed out that the Court “never adequately answered Mr. Justice Frankfurter’s argument that the equal protection claim it held to be justiciable was ‘in effect a Guarantee Clause claim masquerading under a different label.’ In fact the Court was being asked ‘to establish an appropriate form of government . . . for all the States in the Union.’ ” 37 Congress, as Auerbach noticed, had expressed its judgment, in one form or another, “as to the nature of a republican form of government,” and it is Congress, not the Court, Luther v. Borden held, to whom that function is confided.38 Where is the evidence that the framers who rejected the argument that Congress had power over State suffrage by virtue of the “republican form of government” guarantee meant to confer that power by the “equal protection” clause? It speaks volumes that Sumner, who employed “equality before the law” in a school desegregation case (wherein Chief Justice Shaw held against him),39 should have turned to the “republican form of government” guarantee in the 39th Congress. After passage of the Amendment he proposed that the admission of Tennessee and Nebraska be conditioned upon no denial of suffrage, a confession that the “equal protection” clause did not preclude such denials.40

Van Alstyne attaches considerable weight to Bingham’s “unusually rewarding” appeal to “a republican form of government,” which Bingham translated as a guarantee of the “right of franchise.” 41 His view was not shared by influential Republicans, and in the course of the debates he shifted his position, stating, “we all agree . . . that the exercise of the elective franchise . . . is exclusively under the control of the States.” 42 Shortly thereafter he changed course on the very “republican form” guarantee. He had moved for the admission of Tennessee, and Boutwell proposed “a condition precedent” that would require Tennessee to establish “suffrage for all male citizens,” without which, he argued, Tennessee would not have a “republican form of government” because of the exclusion of 80,000 blacks.43 Boutwell was twitted by Bingham: “Why does not the gentleman move for an expulsion of Missouri from representation?” “When [the blacks] shall vote rests with the people of the State. There I leave it.” And, he concluded, with respect to the exclusion of Negroes, “So does Ohio, so does Pennsylvania, and so, also, do a majority of the States.” Boutwell was voted down 125 to 12.44

Bingham is invoked still again by Van Alstyne:

Although Van Alstyne finds this statement “puzzling,” it suffices to read the words in their ordinary sense: §2 shows that Congress was given no control of suffrage by §1, except in a case of a treasonable shift to a despotic government which does away with all voting. Manifestly, a change from representative government to a dictatorship calls for effectuation of the guarantee. But what light does this shed on the general control of suffrage? No subtle elucidation of this passage can cancel out Bingham’s flat-footed statement that “the exercise of the elective franchise is exclusively under the control of the States,” at a time when he completely abandoned the “guarantee” as a limitation on State control of suffrage.46 The Supreme Court confirmed the views of the framers in 1874: “All the States had governments when the Constitution was adopted . . . These governments the Constitution did not change. They were accepted precisely as they were . . . Thus we have unmistakable evidence of what was republican in form.” 47 Unless some special magic was deemed to inhere in the words “equal protection” —a supposition hereinafter examined—the evidence, to my mind, that suffrage was excluded from the Amendment is all but incontrovertible.48

The Report of the Joint Committee on Reconstruction, which Stevens, Boutwell, and Bingham signed, furnishes a conclusive summation:

To “leave the whole question with the people of each State” is to say that §1 left suffrage untouched and that §2 was merely “an inducement [to the States] to allow all to participate in its exercise.”

Chief Justice Warren’s Opinion in Reynolds v. Sims

Chief Justice Warren made no allusion to Justice Harlan’s historical demonstration of the limited scope of the Fourteenth Amendment, and instead struck off a new version of constitutional principle and history. He premised that “the right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” 50 Were Warren drafting a new Constitution that principle would be unexceptionable. But that was not the established principle at the adoption of the Constitution; nor was it embodied therein. On the contrary, Federalist No. 54 recognized that “in every State, a certain proportion of inhabitants are deprived of this right by the constitution of the State.” 51 In the 39th Congress itself, Fessenden said that “everybody has admitted from the foundation of the Government down to the present day that the qualification of voters rested with the States.” 52 Such was the clear consensus in the 39th Congress.

Warren postulated that “the conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth and Nineteenth Amendments can mean only one thing—one person, one vote.” 53 But Lincoln also bowed to “the right of each State to order and control its own domestic institutions,” 54 and reminded a Negro delegation of the ineradicable prejudice toward blacks, who were “far removed from being placed on an equality with the white man.” 55 And if we are to extract a principle from the Fifteenth and Nineteenth Amendments it is that Congress and the people considered that express Amendments were needed to confer suffrage on Negroes and women, that absent these Amendments neither enjoyed “political equality.” 56 The point was made by the Court itself in Minor v. Happersett (1874), wherein a woman claimed that the Fourteenth Amendment endowed her with suffrage: “after the adoption of the fourteenth amendment, it was deemed necessary to adopt a fifteenth . . . If suffrage was one of the privileges and immunities [of the Fourteenth], why amend the Constitution to prevent its being denied on account of race.” 57

The Seventeenth Amendment likewise speaks against Warren, for it provides, with respect to the popular election of Senators, that “the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature,” qualifications, it will be recalled, that were under exclusive State control from the beginning and were left in place by the Fourteenth Amendment.

Reliance upon the Declaration of Independence, to which the Radical left frequently appealed in the 39th Congress, might be dismissed with the remark of neoabolitionist tenBroek: “ ‘All men are created equal’ proclaimed the Declaration of Independence. All men? Well not quite all—not negro slaves like those owned by Jefferson, among others.” 58 To import the Declaration into the Constitution is to overlook their totally different provenance. The Declaration was a product of rebels and revolutionaries; the Constitution came twelve years later, in no small part as a recoil from the “excesses” of popularly controlled legislatures.59 Men of substance felt threatened and, in the words of John Dickinson, sought to protect “the worthy against the licentious.” 60 TenBroek noted that “Equality was the dominant note in the Declaration,” whereas a “stronger position” was accorded in the Constitution to “property,” 61 including property in slaves as the fugitive slave clause testifies. There is no blinking the fact, as Kent Newmeyer recently reminded us, that the Constitution was “racist.” 62 Jefferson himself, author of the Declaration, predicted emancipation, but wrote: “it is equally certain that the two races will never live in a state of equal freedom . . . so insurmountable are the barriers which nature, habit and opinions have established between them.” 63 Stevens powerfully summarized this history at the outset of the 39th Congress:

It needs also to be borne in mind that the Declaration was drawn by the Continental Congress, a league of independent States, each of which jealously guarded its independence.65 One of the reasons advanced by Senator Poland for §1 of the Fourteenth Amendment was doubts as to Congress’ power to “destroy all such partial State legislation” as violated the “principles” of the Declaration of Independence.66 Senator Howard, a favorite of the neoabolitionists, stated that he could not discover the Negro right to vote in the Declaration of Independence and that, “notwithstanding the Declaration of Independence, it is the right of every organized political community to regulate the right of suffrage.” 67 Manifestly, Warren’s appeal to the Declaration as a guiding principle of constitutional construction is out of tune with the historical facts.

A word about his appeal to James Wilson’s 1791 Lectures in Philadelphia: “all elections ought to be equal. Elections are equal, when a given number of citizens, in one part of the State, choose as many representatives, as are chosen by the same number of citizens, in any other part of the state.” 68 This stated an ideal, not a constitutional requirement. When Wilson turned to the Article I, §2, provision that “the Electors in each state shall have the qualifications requisite for Electors of the most numerous Branch of the State Legislature,” he said, “the regulation is generous and wise. It is generous for it intrusts to . . . the several states, the very important power of ascertaining the qualifications” of the Electors. It was evidence of confidence, “that this foundation should be continued or altered by the States themselves.” 69 Wilson was thoroughly aware of the disparate State exclusions from suffrage, having made a survey of the different State constitutions, even noticing that Connecticut provided power to exclude freemen, “according to the sentiments which others entertain concerning their conversations and behavior . . . a power of very extraordinary nature.” And he praises “the wisdom . . . which rested one of the principal pillars of the national government upon the foundations prepared for it by the governments of the several states.” 70 Warren’s use of Wilson affords striking illustration of the “lawyers history” so justly condemned by Alfred Kelly.

Warren’s pervasive error, to my mind, is to substitute twentieth-century logic for the framers’ intention, so clearly expressed in the legislative history: “Logically, in a society ostensibly grounded on representative government, it would seem reasonable that a majority of the people in a State would elect a majority of that State’s legislators.” 71 “Ostensibly grounded” refuses to come to terms with the historical fact that suffrage and apportionment were the province of the States. Once again is demonstrated the wisdom of Holmes’ aphorism, “a page of history is worth a volume of logic.” 72 That history was summarized with crystal clarity in the Report of the Joint Committee on Reconstruction.73

Justice Brennan’s Opinion in Oregon v. Mitchell

Justice Brennan recognized that “racial prejudice in the North” was a most “significant” obstacle in the path of equal suffrage:

Why could not the Republicans in Congress tell their constituents that unless Negro suffrage was granted Republican hegemony was doomed? Unless Northern voters preferred Democratic resurgence to Negro suffrage, the interests of Republican voters and members of Congress were one and the same. In fact the framers shared the prejudices of their Northern constituency, to recall only George W. Julian’s statement in the House: “The real trouble is we hate the Negro.” 75 If the Republicans entertained a secret design to slip suffrage into the Amendment over voter opposition in order to hang on to office, they were betraying their constituency, and for this firm evidence needs to be adduced.

Given the framers’ awareness of voter antipathy to suffrage, one would expect Justice Brennan to resolve all doubts in favor of those sentiments. Instead he substitutes twentieth-century speculation for historical fact to effectuate his own predilections and commits the very sin he incorrectly lays at Harlan’s door: “historical analysis is flawed by ascription of 20th century meanings to the words of 19th century legislators.” 76 For example, Harlan’s “view would appear to allow a State to exclude any unpopular group on the basis of its political opinions.” 77 But if State control over suffrage was plenary, if the Amendment left States free to exclude Negroes on account of their color, they were equally free to exclude others for their “political opinions,” unpalatable as that appears to twentieth-century thinking. It will be recalled that James Wilson noticed the Connecticut provision for exclusion of freemen, “according to the sentiments which others entertain concerning their conversations and behavior . . . a power of very extraordinary nature.” Historical analysis must proceed from the 1866 facts, not reason backward from 1970 predilections. Justice Brennan would substitute his choices for those of the framers; because we dislike a policy today, it does not follow that it is unconstitutional. That standard was rejected both by the Founders and by Chief Justice Marshall.78

Justice Brennan’s opinion runs to some 38 pages; refutation, as is well known, requires more space than bare assertion; hence only a sampling of the Brennan opinion can here be analyzed. A few examples, however, should suffice to disclose Justice Brennan’s preference for speculation over fact. Section 1 began, he notices, as a “provision aimed at securing equality of ‘political rights and privileges’ ”; but the Joint Committee rejected an express reference “to political and elective rights”; it dropped all references to “political rights” and spoke in terms of “privileges and immunities” and equal protection of “life, liberty, and property” by a vote of seven to six. Commenting on these facts, Justice Brennan stated, “the breakdown of the committee vote suggests that . . . no change in meaning was intended,” because the “substitute was supported by men of all political views,” among them Howard and Boutwell, “who had earlier sought to make the section’s coverage of suffrage explicit,” and Stevens and Fessenden.79 But Boutwell, Fessenden, Howard, and Stevens later agreed that the Amendment did not grant suffrage and signed the Joint Committee Report that so stated. To deduce that Bingham merely “sought to do no more than substitute for his earlier specific language more general language” 80 ignores the repeated rejection of the specific proposals. General language may be construed to comprehend specific language that was earlier approved; but when specific language was rejected, evidence is required to explain why the rejected specific was now embodied in the general, evidence, not speculation. Then, too, Bingham cannot be lifted out of the mainstream of Republican statements that the Amendment did not confer suffrage; in fact he himself so stated.81

At the instigation of Robert Dale Owen, a reformer, Stevens had submitted a proposal that after July 4, 1876, “no discrimination shall be made . . . as to . . . the right of suffrage because of race.” This provision was deleted by the Joint Committee, Justice Brennan notes, but “the reasons for the rewriting are not entirely clear.” He notices, however, that in 1875 Owen furnished Stevens’ explanation: “several state delegations held caucuses which decided that the explicit references to ‘negro suffrage,’ in any shape, ought to be excluded from the platform.” 82 Is this not a “clear” explanation? By Brennan’s own testimony the Republicans feared to endanger the Fall elections by the submission of Negro suffrage. He reasons, however, “Perhaps the changes in §1 of the Amendment were thought by the Committee to be mere linguistic improvements which did not substantially modify Owen’s meaning.” 83 The fact is that the 1876 provision was dropped to avoid alienating the electorate. That the “changes” were not “thought by the Committee to be mere linguistic improvements” is once more demonstrated by the unequivocal statement in its Report that suffrage had proven impossible of achievement and was left in the control of the States.

At “the very least,” states Justice Brennan, “the Committee must have realized that it was substituting for Owen’s rather specific language Bingham’s far more elastic language—language that, as one scholar [Alexander Bickel] has noted, is far more ‘capable of growth’ and ‘receptive to “latitudinarian” construction.’ ” 84 Because, Brennan amplified, “political considerations militated against clarification of issues and in favor of compromise,” because “much of the North . . . opposed Negro suffrage, and many Republicans in Congress had to seek reelection from constituencies where racial prejudice remained rampant,” “what Republicans needed, in the words of Wendell Phillips . . . was ‘a party trick to tide over the elections and save time.’ ” 85 This is the Bickel “open-ended” theory which I shall hereafter examine; and I shall also collate the evidence which repels the conclusion that the framers purposely employed “elastic language” to dupe the voters.

For Justice Brennan “the purpose of §1 in relation to the suffrage emerges out of the debates . . . with an equal obscurity.” 86 As exhibit #1 he instances Howard’s statement that “the first section of the proposed amendment does not give to either of these classes the right of voting,” which is “not as unambiguous as [it] initially appear[s].” This is because after stating that “the right of suffrage was not one of the privileges and immunities protected by the Constitution . . . he read into the record an excerpt from . . . Corfield v. Coryell . . . which listed the elective franchise as among the privileges and immunities.” 87 But Senator Trumbull, after calling attention to this Corfield listing, had pointed out that suffrage was not included in the Civil Rights Bill.88 One might deduce that Howard felt no need to repeat such a statement after twice stating that the Amendment did not grant suffrage. Moreover, if an ambiguity be assumed, it was cured by his final statement: “the theory of this whole amendment is to leave the power of regulating the suffrage . . . with the States . . . and not to assume to regulate it.” 89

For exhibit #2, Justice Brennan turns to Bingham’s “completely incongruous statement”: “the exercise of the elective franchise though it be one of the privileges of a citizen of the Republic, is exclusively under the control of the States.” 90 Now Bingham was a confused thinker, as I shall show, but on one thing he was clear: the Amendment did not confer suffrage. At a later point he said: “We all agree . . . that the exercise of the elective franchise . . . is exclusively under the control of the States . . . The amendment does not give, as the second section shows, the power of regulating suffrage in the several States.” He further stated, “the second section excludes the conclusion that by the first section suffrage is subjected to congressional law.” 91 Thereafter Bingham vigorously defended the exclusion of Negro suffrage from the Tennessee Constitution. When Boutwell objected during the debate on the readmission of Tennessee that in consequence it did not have a “republican form of government,” Bingham replied that whether a black “shall vote rests with the people of [Tennessee]. There I leave it . . . I ask the gentlemen to weigh well the question when they come to vote, whether Tennessee shall be rejected only because the majority exercises the same power as to colored suffrage claimed for and exercised by all the other States.” 92 This was after Congress submitted the Amendment with its “equal protection” clause to the people, and Bingham was upheld by a vote of 125 to 12,93 an irreducible fact that speaks more loudly than all of Justice Brennan’s speculations. Here were materials that cured the “ambiguity,” 94 that dissipated the “obscurity” conjured up by Justice Brennan, of which he took no notice. And why lean so heavily on the alleged “ambiguities” of two leaders when the vast majority of the leadership and rank and file affirmed or recognized that suffrage was excluded from the Amendment?

Then there is Brennan’s citation of Sumner, who was all but ostracized in the Senate, whose proposals were regularly voted down by very large majorities;95 and his appeal to Stevens’ statement that the Amendment “merely allowed ‘Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all.’ ” 96 Stevens sought equality with respect to the rights enumerated in the Civil Rights Act, from which suffrage was excluded. But on the issue of suffrage, he stated, “I hold that the States have the right . . . to fix the elective franchise within their own States. And I hold that this [ “representation” proposal] does not take it from them . . . How many States would allow Congress to come within their jurisdiction to fix the qualifications of their voters . . . You could not get five in this Union.” 97 It was on Stevens’ motion that the Joint Committee adopted a reduction of representation proposal; and it rejected Boutwell’s motion to “abolish” any distinction.98

Justice Brennan also refers to three Democratic opponents of the Amendment who, more or less clearly, saw in it a grant of suffrage.99 Opponents of a measure, particularly those who seek to discredit it, are given slight credence, as I shall show; their testimony is not employed to define its scope.100 What are we to think of Brennan’s reference to Senator Stewart, who, “while unhappy that the Amendment did not directly confer suffrage, nevertheless could ‘support this plan’ because it did ‘not preclude Congress from adopting other means by a two-thirds vote’ ”?101 Of course Congress could later propose another amendment by a “two-thirds vote”; Stewart plainly had no reference to congressional implementation by statute, for that could be done by majority vote, given authorization by the Amendment.

Finally, Justice Brennan takes over Van Alstyne’s critique of Harlan’s alleged view that “ §2 is specifically concerned with voting rights, and it provides an exclusive remedy that precludes or preempts application of §1.” 102 Apparently this is based on Harlan’s reference to the “Court’s utter disregard of the second section which expressly recognized the State’s power to deny the right . . . to vote and its express provision of a remedy for such denial or abridgment.” 103 This unduly exalts a loose, passing reference to “remedy.” Remedies are given for “wrongs”; it is no “wrong” to exercise the “recognized . . . power to deny the right . . . to vote.” Then, too, since §1 conferred no suffrage, §2 obviously created no remedy for a nonexistent right. Certainly it gave no “remedy” to the black who was denied a vote. Senator Stewart, a Republican, sardonically commented that §2 relieves the Negro “from misrepresentation in Congress by denying him any representation whatever.” 104 Justice Brennan explains that §2 “was of critical importance in assuring that, should the Southern States deny the franchise to Negroes, the Congress called upon to remedy that discrimination would not be controlled by the beneficiaries of discrimination themselves.” 105 The truth is that §2 was the core of the Republican program because, as Brennan himself states, the Republicans needed to “prevent total [Democratic] resurgence,” “massive electoral gains in the North.” Reduction of representation when Negro suffrage was denied was deemed more important than endowing blacks with the vote; perceptive Republicans doubted whether the South would be “induced” to enfranchise Negroes and thus lose control.106 Section 2, therefore, was not so much a “remedy” to enforce rights which §1 had not granted as a mechanism to preserve Republican hegemony. Forlorn hopes that the South could thereby be “induced” to confer suffrage were doomed to disappointment.

Enough has been set forth to exhibit Justice Brennan’s strange preference for minority Democrats and dissentient radicals like Sumner over the Republican leadership and its followers who enacted the measure and whose utterances are virtually ignored by him, his preference for “ambiguous” utterances rather than the crystal-clear explanations of the self-same speakers, and for speculation over the mass of stubborn evidence to the contrary.107 Future historians, I confidently predict, will not prefer the “history” of Brennan to that of Harlan.

[1.]Paul Kauper, “Some Comments on the Reapportionment Cases,” 63 Mich. L. Rev. 243, 244 (1964). In more restrained diction, Archibald Cox instances the reapportionment cases as a “dramatic” example of “reading into the generalities of the Due Process and Equal Protection Clauses notions of wise and fundamental policy which are not even faintly suggested by the words of the Constitution, and which lack substantial support in other conventional sources of law.” The Role of the Supreme Court in American Government 100 (1976).

Reapportionment may have been “wise,” but did it represent the kind of emergency situation that at best arguably excuses judicial revision? Philip Kurland considers that “reapportionment of the state and local legislatures was not among the more pressing problems in post–World War II America.” Politics, the Constitution and the Warren Court 83 (1970). For an extended and persuasive demonstration that reapportionment was not necessary, see Ward Elliott, The Rise of a Guardian Democracy (1974).

[2.]Van Alstyne 78–79.

[3.]Supra Chapter 1 at note 55; Chapter 4 at note 4; Kendrick 207; cf. Van Alstyne 57.

[4.]Chief Justice Warren, Alfred Kelly states, “carefully neglected the far more important fact that every one of the state legislatures that sent delegates to Philadelphia was grossly malapportioned by any ‘one man, one vote’ standard, and the state conventions that ratified the Constitution were in every instance set up on the same rule of apportionment.” “Clio and the Court: An Illicit Love Affair,” 1965 S. Ct. Rev. 119 at 136–137. Justice Story, commenting on the possible introduction of a clause “to regulate the State elections of members of State legislatures” stated, “It would be deemed a most unwarrantable transfer of power, indicating a premeditated design to destroy the State governments. It would be deemed so flagrant a violation of principle as to require no comment.” 1 Joseph Story, Commentaries on the Constitution of the United States §819 (5th ed. 1905). [In the Convention Nathaniel Gorham said, “ [T]he Constitution of [Massachusetts] had provided that the [representatives of the] larger districts should not be in an exact ratio of their numbers. And experience he thought had shewn the provision to be expedient.” 1 The Records of the Federal Convention of 1787 405 (Max Farrand ed. 1911). In the First Congress, Representative Michael Stone of Maryland said, “the representatives of the States were chosen by the States in the manner they pleased.” 1 Annals of Congress 765 (1834).]

[5.]Van Alstyne 80. Stevens stated that “This section [2] allows the States to discriminate among the same class, and receive proportionate credit in representation.” Globe 2460 (emphasis added). So too, the antecedent Civil Rights Bill, Shellabarger stated, “does not prohibit you from discriminating between citizens of the same race . . . as to what their rights to testify, to inherit . . . shall be.” Globe 1293.

[6.]With reference to a bill introduced by Sumner in March 1867, David Donald states, “Disturbed by the revolutionary changes Sumner hoped to bring about in the South, Republican Congressmen were horrified that he proposed to extend them to the North as well,” among them to secure “the elective franchise to colored citizens.” Donald, Sumner II 299. Bickel, 16 note 40, states that “Conservative Republicans who considered the Freedmen’s Bureau Bill [applicable only in the South] an appropriate concession to offer to the Radicals, evidently felt quite differently about a statute which might be applied in their constituencies.” “ [N]ational enfranchisement of the Negro—which meant Negro voting in the North—was out of the question.” William Gillette, The Right to Vote: Politics and the Passage of the Fifteenth Amendment 32 (1965). See also Harold M. Hyman, A More Perfect Union 470 (1973).

[7.]When the Amendment was submitted to the States for ratification, “the northern press,” states Flack at 145, “with few exceptions, if any, took the view that the first section of the Amendment re-enacted or gave authority for, the Civil Rights Bill.” He quotes a speech of Trumbull in Chicago: §1 “was a reiteration of the Civil Rights Bill”; and one of Sherman in Cincinnati: “the first section embodied the Civil Rights Bill”; id. 148.

Justice Black, that fervent advocate of reapportionment (Wesberry v. Sanders, 376 U.S. 1 [1964]), stated in his earlier attempt to read corporations out of the Fourteenth Amendment that “the people were not told they [were ratifying] an amendment granting new and revolutionary rights to corporations.” Connecticut General Ins. Co. v. Johnson, 303 U.S. 77, 86 (1938), dissenting opinion. Compare supra Chapter 1 note 57. Justice Field, dissenting in Ex parte Virginia, 100 U.S. 339, 362–363 (1879), stated that the provision for Negro jurors was “a change so radical . . . [as] was never contemplated by the recent amendments. The people, in adopting them did not suppose they were altering the fundamental theory of their dual system of government.” As we have seen, the framers actually contemplated the continued exclusion of Negro jurors. But the selfsame Field had no difficulty in advocating the tremendous alteration embodied in substantive due process.

[8.]Globe 377. Malapportionment was fastened on the Constitution from the outset by the compromise which permitted three-fifths of the voteless Negro population to be counted for purposes of representation in the House of Representatives. Thereby, as John Quincy Adams remarked, “Every planter South of the Potomac has three votes in effect for every five slaves he keeps in bondage; while a New England farmer who contributes ten-fold as much to the support of the Government has only a single vote” (Nov. 8, 1804). Quoted in Samuel F. Bemis, John Quincy Adams and the Foundation of American Foreign Policy 123 note 37 (1949). The result was to give the South twenty-five additional members and to “enable the slave power to keep its grip on the nation.” Samuel F. Bemis, John Quincy Adams and the Union 417, 446 (1956). Malapportionment was also embedded in the Constitution by the provision for two Senators from each State, although, as Thomas Hartley remarked in the First Congress, “their proportions are as ten to one.” 1 Annals of Congress 481.

[9.]Van Alstyne 79 note 142.

[10.]Id.

[11.]Infra at notes 26–27, 69–70.

[12.]Globe 141.

[13.]“The true basis for representation, Sumner declared in a speech to the [Massachusetts] convention on July 7 [1853], should ideally be founded ‘absolutely upon equality’ so as to make all men, in the enjoyment of the electoral franchise, whatever their diversity of intelligence, education or wealth, and wheresoever they may be within the Commonwealth, whether in small towns or populous city, ‘absolutely equal at the ballot box.’ But, he swiftly backtracked, this system of equal representation could not be advantageously instituted ‘unless supported by the permanent feelings and conditions of the people.’ As the practice of giving Massachusetts small towns disproportionate influence had sprung ‘from custom and popular faith, silently operating with internal power, not from the imposed will of a lawgiver’ . . . no radical change in the admittedly inequitable system should be tried at present, but instead the rural towns should be given more representation so as to protect the Commonwealth against the ‘commercial feudalism’ of the big cities.” Donald, Sumner I 246, quoting 3 Sumner, Works 229–258. See supra note 4.

[14.]Quoted in Reynolds v. Sims, 377 U.S. 533, 605 (1964). Stevens likewise stated that the several constitutions had been pronounced “republican in form.” Id. 604 note 42.

[15.]See Van Alstyne, quoted infra at note 17. “ [T]o quarrel with the records without abundant cause is to engage in a desperate cause.” H. G. Richardson and G. O. Sayles, “Parliament and Great Councils in Medieval England,” 77 L. Q. Rev. 213, 235–236 (1961). Roughly speaking, unless testimony is inherently incredible it must be countered by evidence, not speculation. Phillips v. Gookin, 231 Mass. 250 , 251, 120 N.E. 691 (1918); Messon v. Liberty Fast Freight Co. 124 F.2d 448, 450 (2d Cir. 1942); Eckenrode v. Pennsylvania R. Co., 164 F.2d 996, 999 note 8 (3d Cir. 1947); cf. Miller v. Herzfeld, 4 F.2d 355, 356 (3d Cir. 1925); Magg v. Miller, 296 F. 973, 979 (D.C. Cir. 1924).

[16.]After cataloging the “malapportioned” States, Justice Harlan asked, “Can it be seriously contended that the legislatures of the States, almost two-thirds of those concerned, would have ratified an amendment which might render their own State constitutions unconstitutional?” 377 U.S. at 603.

[17.]Van Alstyne 80, 81, 85. Alfred Kelly also dismisses Harlan’s argument; “it neglected one embarrassing fact: both the provision of §2 and the extensive debate . . . were directed at the possibility of a state’s limiting Negro franchise and not to the problem of district legislative apportionment, an entirely different historical question.” Kelly, “Clio,” supra note 4 at 137. Notwithstanding the difference, Chief Justice Warren built his reapportionment case on “one man, one vote.” Because of this “embarassing fact” Kelly charges that Harlan “indulged in a bit of law office history of his own.” Id. That charge, as the above analysis of the same argument by Van Alstyne demonstrates, is without foundation. Nor is Kelly the man to cast stones.

He recorded that when he was retained in the desegregation case to file a historical brief for the NAACP (Kelly, Fourteenth, 1049n), he “manipulated history in the best tradition [?] of American advocacy, carefully marshalling every scrap of evidence in favor of the desired interpretation and just as carefully doctoring all the evidence to the contrary, either by suppressing it when that seemed plausible, or by distorting it when suppression was not possible.” Kelly, “Clio,” supra note 4 at 144. That is an astonishing admission from a scholar who upbraids the Court because it “carefully selected the materials designed to prove the thesis at hand, suppressing all data that might impeach the desired historical conclusion.” Kelly, “Clio,” supra note 4 at 126.

[18.]See supra Chapter 1 note 57. “An alleged surrender . . . of a power of government . . . must be shown by clear and unequivocal language; it cannot be inferred from . . . any doubtful or uncertain expressions.” Belmont Bridge v. Wheeling Bridge, 138 U.S. 287, 292–293 (1891).

Even where States were forbidden to legislate with respect to a particular subject and Congress was empowered to enforce the prohibition, Justice Bradley rejected the assumption that “this gives Congress power to legislate generally upon that subject” as “repugnant to the Tenth amendment.” Civil Rights Cases, 109 U.S. 3, 15 (1883). In the Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 78 (1872), Justice Miller rejected a construction which would subject States “to the control of Congress, in the exercise of powers heretofore universally conceded to them” in the absence of “language which expresses such a purpose too clearly to admit of doubt.” One may differ with his construction of the Fourteenth Amendment, but the fact remains that he was neither the first nor last to state that rule.

[In United States v. Darby, 312 U.S. 100, 124 (1941), Justice Stone stated, “(the Tenth Amendment) states but a truism that all is retained which has not been surrendered.” It was merely “declaratory of the relationship between the national and State governments”; its purpose was “to allay fears that the new federal government might seek to exercise powers not granted, and that the States might not be able to exercise fully their reserved powers.” ]

[19.]Van Alstyne 80.

[20.]“Nothing is more evident than that the greater must include the less.” Minor v. Happersett, 88 U.S. (21 Wall.) 162, 175 (1874).

[21.]Reynolds v. Sims, 377 U.S. 533, 554, 555. “The fundamental issue, as [Solicitor General Archibald Cox] puts it, is whether the State law ‘arbitrarily and unreasonably apportions its legislature so as to deny the real meaning of the right to vote, i.e., effective participation in democratic government.’ ” Phil C. Neal, “Baker v. Carr: Politics in Search of Law,” 1962 S. Ct. Rev. 252, 285.

My study of the “republican form of government” guarantee, infra at notes 22–47, persuaded me that the Founders had no intention of interfering with State control of suffrage. Justice Stewart’s opinion (concurring and dissenting in part) in Oregon v. Mitchell, 400 U.S. 112, 288–290 (1970), pulls together the other textual and historical materials that confirm me in that view.

[22.]Van Alstyne 49–51.

[23.]Hyman, supra note 6 at 469. Sumner early invoked the “republican form of government” guarantee to secure blacks against “denial of rights, civil or political,” and to make them “equal before the law.” Globe 92.

[24.]1 Max Farrand, The Records of the Federal Convention of 1787 206 (1911) (emphasis added).

[25.]Federalist 282, 283 (emphasis added).

[26.]Id. 341–342.

[27.]Id. 356.

[28.]Globe 706. David Donald comments that Sumner’s program met with little favor in his own Massachusetts, that it “was not taken seriously,” and that his “Republican colleagues greeted his resolutions and bills” with “total silence.” Donald, Sumner II 234, 235, 240, 243.

[29.]Globe 358–359.

[30.]Id. 3980. Two of Van Alstyne’s dissentients, Higby and Kelley, were among the twelve who voted against the admission.

[31.]Id. 3988.

[32.]Van Alstyne 50.

[33.]Globe 427.

[34.]Id. Shellabarger admitted that although the Southern States disenfranchised blacks, they have “been by common consent regarded as republican and constitutional.” Id. 405. See also Thomas A. Jenckes of Rhode Island, id. 387. Replying to Sumner’s argument that the limitation of suffrage to whites in the Colorado constitution violated the “republican form of government,” Senator Stewart stated, “Nineteen of the free States now exclude blacks from the franchise.” Id. 1330–1331.

[35.]Donald, Sumner II 202.

[36.]Globe 427.

[37.]Auerbach, “The Reapportionment Cases: One Person, One Vote—One Vote, One Value,” 1964 S. Ct. Rev. 1, 85. “Yet to rest the Reapportionment Cases on the Guarantee Clause creates difficulties of its own which must be evaluated . . . Historically the system of legislative representation prevailing in a State was intended to be subject to the requirements of the Guarantee Clause while, as we saw, the Equal Protection Clause was not originally intended to deal with this matter.” Id. Paul Kauper likewise was critical of the conversion of equal protection to the guarantee of a republican form of government. “This is the central issue in these cases—what form of government is compatible with a representative form of government—and the guarantee of a republican form of government is the explicit constitutional provision relevant to the problem.” Kauper, supra note 1 at 244.

[38.]Auerbach, supra note 37 at 86; 48 U.S. (7 How.) 1 (1849). Auerbach notices the “serious difficulty” posed by the fact that “Congress has admitted states into the Union and declared their forms of government to be ‘republican,’ even though their constitutions authorized systems of apportionment that the Court would now declare unconstitutional. It would be awkward for the Court to say not only that it has a role in enforcing the Guarantee Clause but that it also may overrule the expressed judgment of Congress as to the nature of a republican form of government” (in an area which Luther v. Borden held was not for the Court but for Congress). “The Court,” Auerbach continues, “thinks it has avoided this contradiction of Congress by resting on the Equal Protection Clause . . . but the Court’s explanation is not very satisfactory.” Id. 86.

Auerbach finds solace in Justice Frankfurter’s statement that “if the ‘changing circumstances of a progressive society’ for which the Constitution was designed ‘yield new and fuller’ import to the language of the Equal Protection Clause, they also yield new and fuller import to the language of the Guarantee Clause.” Id. 87. Yet Frankfurter could not extend the “new and fuller import” to the reapportionment cases.

[39.]Cf. Donald, Sumner I 180; Kelly, Fourteenth 1056.

[40.]Senator Sumner proposed as a condition upon the admission of Tennessee that there should be no denial of suffrage; the proposal was rejected by a vote of 34 to 4. Several days later a similar Sumner proposal respecting the admission of Nebraska was defeated by a vote of 34 to 5. Globe 4000, 4232.

[41.]Van Alstyne 51–52; Globe 431.

[42.]Globe 2542.

[43.]Globe 3950, 3975–3976.

[44.]Id. 3978–3979, 3980.

[45.]Van Alstyne 62–63; Globe 2542; emphasis added; see supra at note 25.

[46.]Globe 2542; and supra at notes 43–44.

[47.]Minor v. Happersett, 88 U.S. (21 Wall.) 162, 175–176.

[48.]“It is clear,” said the Court in Minor v. Happersett, id. 171, “that the Constitution [Fourteenth Amendment] has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted.”

[49.]Report of the Joint Committee on Reconstruction, 39th Cong., 1st Sess. (undated, 1866) xiii (emphasis added). At an early stage Conkling stated that the Committee rejected a proposal “To deprive the States of the power to disqualify or discriminate politically on account of race” and instead approved a proposal. “To leave every State perfectly free to decide for itself, not only who shall vote, but who shall belong to the political community in any way.” Globe 357. Chairman Fessenden stated that §2 “leaves the power where it is,” i.e., with the States. Globe 705. When James M. Ashley of Ohio was asked by his Ohio colleague, Francis LeBlond, “why the gentleman yields the question of suffrage, as he does, in supporting the [representation] proposition of the Committee,” he replied, “Because I cannot get it.” Id. 2882.

[50.]377 U.S. at 555.

[51.]Federalist 356; see supra at notes 26–27; infra at notes 69–70.

[52.]Globe 1279.

[53.]377 U.S. at 558. This was quoted from the opinion of Justice Douglas in Gray v. Sanders, 372 U.S. 368, 381 (1963).

[54.]Supra Chapter 4 at note 38.

[55.]Supra Chapter 1 at note 36.

[56.]As Justice Harlan stated, “the very fact that constitutional amendments were deemed necessary to bring about federal abolition of state restrictions on voting by reason of race (Amendment XV), sex (Amendment XIX) . . . is itself forceful evidence of the common understanding in 1869, 1919 . . . that the Fourteenth Amendment did not empower Congress to legislate in these respects.” Oregon v. Mitchell, 400 U.S. at 202, dissenting and concurring in part.

[57.]88 U.S. (21 Wall.) 162, 175. In United States v. Cruikshank, 92 U.S. 542, 555 (1875), Chief Justice Waite reaffirmed that “the fifteenth amendment has invested the citizens of the United States with a new constitutional right, which is exemption from discrimination in the exercise of the elective franchise on account of race. From this it appears that the right of suffrage is not a necessary attribute of national citizenship” (emphasis added).

After indicating that “the 15th and 19th amendments prohibit a State from overweighting or diluting votes on the basis of race or sex,” Chief Justice Warren, quoting a prior opinion, asked, “How then can one person be given twice or ten times the voting power of another person . . . merely because he lives in a rural area.” 377 U.S. at 557. Given that discrimination in favor of “rural areas” is historically deep-rooted, orthodox analysis would conclude: because the Fifteenth and Nineteenth govern only “race and sex,” not “rural areas.” My citation of old cases does not betray a weakness for ancient vintages but responds rather to the weight long given to interpretations contemporary with or close to the event, particularly when they confirm the intention of the framers as disclosed by the legislative history. See infra Chapter 10 note 66.

[58.]TenBroek 14.

[59.]Raoul Berger, Congress v. The Supreme Court 10–11 (1969).

[60.]Quoted in Gordon Wood, The Creation of the American Republic 1776–1787 475 (1969).

[61.]TenBroek 16.

[62.]“Book Review,” 19 Am. J. Legal Hist. 66, 67 (1975). Kelly, however, regards efforts to prove that “the Constitution was exclusively a ‘white man’s document’ ” and “to discount the Declaration of Independence” as a lapse into “a priori, fiat technique.” Kelly, “Clio,” supra note 4 at 126 note 26.

[63.]Quoted in 1 Alexis de Tocqueville, Democracy in America 378n (1900).

[64.]Globe 536.

[65.]See Raoul Berger, Executive Privilege: A Constitutional Myth 103–107 (1974).

[66.]Globe 2961.

[67.]Id. 2175.

[68.]Quoted in 377 U.S. at 564 note 41 (emphasis added). The quotation appears at 1 James Wilson, The Works of James Wilson 406 (R. G. McCloskey ed. 1967).

[69.]1 Wilson, supra note 68 at 407 (emphasis added).

[70.]Id. 409, 411.

[71.]377 U.S. at 565 (emphasis added). Ward Elliott justly states that in Reynolds v. Sims the Court fabricated a “fundamental principle of ‘one person, one vote’ that was exactly the reverse of text and stated intent of the equal protection clause.” Elliott, supra note 1 at 129. As a professor, Solicitor General Robert J. Bork wrote, “Chief Justice Warren’s opinions in this series of [state legislative apportionment] cases are remarkable for their inability to muster a single respectable supporting argument. The principle of one man, one vote . . . runs counter to the text of the fourteenth amendment, the history surrounding its adoption and ratification and the political practice of Americans from Colonial times up to the day the Court invented the new formula.” “Neutral Principles and Some First Amendment Problems,” 47 Ind. L.J. 1, 18 (1971).

[72.]New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921). Dissenting in a reapportionment case, Justice Stewart stated, “these decisions mark a long step backward into that unhappy era when a majority of the members of this Court . . . convinced themselves and each other that the demands of the Constitution were to be measured not by what it says, but by their own notions of wise policy . . . What the Court has done is to convert a particular political philosophy into a constitutional rule.” Lucas v. Colorado General Assembly, 377 U.S. 713, 747–748 (1964).

[73.]Supra at note 49.

[74.]Oregon v. Mitchell, 400 U.S. at 255–256, dissenting in part.

[75.]Globe 257. Similar statements are collected supra Chapter 1 at note 40.

[76.]400 U.S. at 251.

[77.]Id. 252 note 4.

[78.]See infra Chapter 14 at notes 103–104.

[79.]400 U.S. 257–260.

[80.]Id. 260.

[81.]See infra at notes 91–93.

[82.]400 U.S. at 260–262. This incident is more fully discussed infra Chapter 6 at notes 38–41.

[83.]400 U.S. at 263.

[84.]Id.

[85.]Id. 272, 273.

[86.]Id. 263.

[87.]Id. 263–264.

[88.]Supra Chapter 2 at notes 47, 31.

[89.]Globe 3039; and see supra Chapter 4 at note 34.

[90.]400 U.S. at 264.

[91.]Globe 2542.

[92.]Id. 3978, 3979.

[93.]Id. 3980.

[94.]400 U.S. at 264.

[95.]Supra note 40; infra Chapter 7 at note 40. For rejection of another Sumner proposal, see supra Chapter 4 at note 20. A “deep estrangement . . . existed between Sumner and his Republican colleagues . . . More and more Senators came to distrust, when they did not detest, him.” Donald, Sumner II 248. See also supra notes 6 and 28.

[96.]400 U.S. at 266.

[97.]Globe 536.

[98.]Kendrick 51, 55.

[99.]400 U.S. at 267. Brennan also cites two other Democrats, Boyer of Pennsylvania and Senator Hendricks of Indiana, id. 274.

[100.]Infra Chapter 9.

[101.]400 U.S. at 268.

[102.]Id. 276–277; Van Alstyne 39.

[103.]Reynolds v. Sims, 377 U.S. at 594.

[104.]Globe 2801. See also Senator Reverdy Johnson, supra Chapter 4 note 61.

[105.]400 U.S. at 277.

[106.]Supra Chapter 4.

[107.]Unless evidence is inherently incredible, it must be countered by evidence, not speculation. Supra note 15.