A mostly off-topic note on yesterday's apportionment decision, Evenwel v. Abbott.
The Fourteenth Amendment (ratified 1868) provides in Section 2, "Representatives shall be apportioned among the several States according to their representative numbers, counting the whole number of persons in each State, excluding Indians not taxed." It was well understood at the time that the "whole number of persons" was far greater than the number of voters. The same section provided that a State could be dinged on its representation if it denied the vote to "any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States ... except for participation in rebellion, or other crime." Extension of the franchise to women and 18-20 year olds would require further amendments; denying the vote to noncitizens, juveniles under 18, and felons remains valid to this day.
Section 1 of the same amendment requires equal protection of the laws. Does the Equal Protection Clause have buried deep within it a hitherto secret requirement that apportionment within a state be made by the number of eligible voters rather than "the whole number of persons" that Section 2 expressly requires for apportionment between states? Of course not. The suggestion is ludicrous. If that kind of apportionment really were a principle fundamental to our nation, the Fourteenth Amendment would require it for both intrastate and interstate apportionment.
Some provisions of the Constitution are broad and general, and there is much room for debate as to what they mean. We should be able to agree, though, that a purported principle cannot be so fundamental to our society as to be mandated by such general phrases as "equal protection of the laws" or "due process of law" when a specific provision of the Constitution directly contradicts that purported principle.
We see the same kinds of arguments in criminal cases. The Fifth and Eighth Amendments were adopted at the same time. Whatever "cruel and unusual punishments" may mean, it cannot forbid capital punishment, as the Fifth Amendment expressly allows for capital cases, multiple times.
So how could the Supreme Court legitimately hold that the Equal Protection Clause mandates proportional representation in state senates when both the original Article I and the Seventeenth Amendment expressly require non-proportional representation in the United States Senate? It couldn't, as Justice Thomas points out in his concurring opinion in Evenwel. Apportionment fights are raw, bare-knuckled politics to be fought out in legislative and electoral battles. The judiciary has no proper role in the fight except as Congress may authorize under its powers under Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth.
Section 1 of the same amendment requires equal protection of the laws. Does the Equal Protection Clause have buried deep within it a hitherto secret requirement that apportionment within a state be made by the number of eligible voters rather than "the whole number of persons" that Section 2 expressly requires for apportionment between states? Of course not. The suggestion is ludicrous. If that kind of apportionment really were a principle fundamental to our nation, the Fourteenth Amendment would require it for both intrastate and interstate apportionment.
Some provisions of the Constitution are broad and general, and there is much room for debate as to what they mean. We should be able to agree, though, that a purported principle cannot be so fundamental to our society as to be mandated by such general phrases as "equal protection of the laws" or "due process of law" when a specific provision of the Constitution directly contradicts that purported principle.
We see the same kinds of arguments in criminal cases. The Fifth and Eighth Amendments were adopted at the same time. Whatever "cruel and unusual punishments" may mean, it cannot forbid capital punishment, as the Fifth Amendment expressly allows for capital cases, multiple times.
So how could the Supreme Court legitimately hold that the Equal Protection Clause mandates proportional representation in state senates when both the original Article I and the Seventeenth Amendment expressly require non-proportional representation in the United States Senate? It couldn't, as Justice Thomas points out in his concurring opinion in Evenwel. Apportionment fights are raw, bare-knuckled politics to be fought out in legislative and electoral battles. The judiciary has no proper role in the fight except as Congress may authorize under its powers under Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth.
Leave a comment