La estructura de las Creencias

As seen in the previous chapter, James Madison recognised that tyranny was most likely at the local level but he also feared that eighteenth century malapportionment would contaminate representation at the federal level unless Congress had the power to override state control of federal elections.394 Malapportionment was also present in the state legislatures of the eighteenth century. Jefferson deplored the situation in Virginia where the tidewater counties continued to insist on the older territorial principle of two representatives per county to offset the growing influence of western counties in the state assembly.395 During the Constitutional Convention, Madison presciently feared that the states would contaminate representation at the federal level.

The inequality of the Representation in the Legislatures of particular States, would produce a like inequality in their representation in the Natl. Legislature, as it was presumable that the Counties having the power in the former case would secure it to themselves in the latter.396

Madison argued in Federalist 51 that a natural balance between the large number of interests in a continental sized republic would render “an unjust combination of a

394

Article 1, Section 4 of the Constitution does just that.

395 _{Willi Paul Adams, The First American Constitutions: Republican Ideology and The Making Of The} State Constitutions In The Revolutionary Era, (Rowman & Littlefield Publishers, 2001), p. 234.

396 _{James Madison, 'Records of the Federal Convention, 9 August 1787', (Chicago: University of Chicago} Press, 2000). Madison also anticipated the late nineteenth and twentieth century practice of many states to award their counties one senator each to create one chamber based on a non-population basis in order to counter balance the power shift to urban areas.

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majority of the whole very improbable, if not impracticable”397_{. Madison’s faith in a} balance between social forces to prevent tyranny across the country as a whole was partially correct. However, politics remained local and the same veniality Madison identified in state legislatures in the eighteenth century frustrated political attempts to solve the malapportionment issue in the twentieth century.398

With the vote of a rural inhabitant of Tennessee worth up to twenty times that of an urban dweller in some cases, the result was that in state and federal elections legislators would be elected who would represent the interests and rights of a minority of (mainly) white voters and not the majority who dwelt in the cities.399 Malapportionment showed that when representative democracy did not represent certain groups they were more likely to have their individual rights infringed as well. One example was how malapportionment exacerbated the effects of segregation and allowed state legislatures to resist the Court’s integration ruling in Brown v Board of Education. In 1956, when the Virginia legislature voted to close public schools rather than integrate, the seventeen senators who opposed the measure represented more Virginians than the twenty-one state senators who voted in favour of the action.400

Malapportionment was therefore not merely a problem for democratic legitimacy. It affected citizens’ individual, economic, civil, and social rights. Minority control of legislatures across the United States impacted on the ability of civil society groups and others seeking progressive reform to improve working conditions, increase funding for health and education programmes, and advance civil rights protections.401 As Justice William Brennan’s majority opinion in Baker put it, “if present representation has a policy at all, it is to maintain the status quo of invidious discrimination at any cost.”402

Urban areas with larger populations suffered from chronic underfunding of community infrastructure and educational provision. City and municipal officials across Tennessee joined the court action in Baker including

397 _{Madison, Hamilton, and Jay, 'Number 51 (Madison)', p. 321.} 398

Charles Rhyne, the attorney for the appellants seeking judicial relief noted that in Tennessee “every bill for reapportionment since 1901 has [been] voted down in the Senate; no such bill has ever received more than 13 of the 33 votes; and in the House, no bill has ever received more than 36 of the 99 votes.” Baker v Carr (Oral Argument), 396 U.S. 186 (1962).

399

James Cummings, one of the most prominent rural legislators, remarked to a reporter, “I believe in collecting the taxes where the money is―in the cities―and spending it where it’s needed―in the country.” Smith, p. 54.

400 _{Ibid. p. 19. These decisions to close public schools rather than allow integration were subsequently} overturned in state and federal courts.

401 Ibid.

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Nashville mayor, Ben West, whose office provided crucial statistical evidence of the discriminatory effects of malapportionment.403

The involvement of civil society actors such as the League of Women Voters (LWV), state municipal officials, and the executive branches of the federal government in highlighting the iniquity of malapportionment gave the issue a profile which proved indispensable to its eventual resolution. This public awareness proved important in initiating the litigation in Baker and in bringing on board the amicus curae404 support from both the Eisenhower and Kennedy administrations for the Supreme Court challenge. Equally clear, however, was that years of concerted civil society action against malapportionment had failed to shame legislators into reapportioning or secure change through political channels. In 1962, only five states – Massachusetts, New Hampshire, Oregon, West Virginia and Wisconsin – apportioned “so that majorities in both chambers of the legislature represented at least 40 percent of the population.” 405 Individual voters and even active groups such as the LWV lacked the means to resist when the political institutions of the state have been captured by legislators who had manifestly subverted law, their state constitutions, and the U.S. Constitution to secure their office. The reapportionment cases represent the paradigmatic examples of political issues that could not have been solved without judicial intervention since it was too much to expect legislators to willingly vote themselves out of office and a job.

Appearing before the Court during oral arguments in Baker406, Archibald Cox407, the U.S. Solicitor General, highlighted this tension between legislative usurpation and the faltering resistance of the citizens, which he argued can only succeed through the courts.

We've often been reminded and quite right that the ultimate safeguard of constitutional rights is a vigilant electorate. But where the wrong goes to the existence or distribution of the franchise, then the electorate can do nothing to protect itself. No matter how vigilant the majority of the people of Tennessee are, there is

403 _{West’s office showed how malapportionment affected state aid for education and the disbursement of} gasoline and motor tax revenues that paid for roads, bridges and other infrastructure. When Baker was re- argued in October 1961 this new information made a significant impression on the Court. See Smith, p. 61.

404 _{Meaning friend of the court.}

405 _{In twenty-three states the theoretical minimum of the population electing a majority of the state senate} was less than 30 percent, and in ten of those the figure did not reach 20 percent. See Smith, p. 17. 406 _{This was unusual for the U.S. Government to support a case in this way}

407

Cox is perhaps most famous for being fired as Special Prosecutor by Richard Nixon during the Watergate crisis after Cox demanded that Nixon hand over the tapes.

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nothing that they can do under these circumstances to assert their constitutional rights. […] The short of this case is as Judge Miller pointed out in his opinion convening the three-judge court that either there is a remedy in the federal court or there is no remedy at all.408

Cox was essentially making the point about malapportionment addressed by John Locke in his Two Treatises of Government.409 As will be seen in the next section, the arguments presented before the Court in Baker and the other reapportionment cases represented a tension within the constitution—whether the federal courts could compel the state legislatures to reapportion—and the demands of citizens to have their constitutional rights upheld.