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Journal ArticleDOI

Baker v. Carr: Politics in Search of Law

01 Jan 1962-Supreme Court Review (The University of Chicago Press)-Vol. 1962, Iss: 1, pp 252-327
TL;DR: In this paper, Baker et al. pointed out that the Alabama constitution does not change the representation in the state legislature based on the population of the state, and proposed a constitutional amendment to change it.
Abstract: OF THE UNITED STATES 360 [1961].) 171 The provision of the Alabama constitution referred tois the last sentence of ? 284. Section 284 prescribes the mode of amending the constitution. The last sentence provides: \"Representation in the legislature shall be based upon population, and such basis of representation shall not be changed by constitutional amendments.\" Ala. Code ? 284 (1958). Article IX of the Alabama constitution, ?? 197-203, prescribes the composition of the Alabama legislature. Section 197 fixes the size of the Senate at not less than one-fourth nor more than one-third of the number of representatives. Section 198 limits the size of the House of Representatives to 105, plus one for each new county, and provides for decennial reapportionment \"among the several counties of the state, according to the number of inhabitants in them, respectively.\" Section 199 provides that each county shall be entitled to at least one representative. Section 200 provides that the legislature shall determine s natorial districts \"as nearly equal to each other in the number of inhabitants as may be,\" that each district shall elect one senator, and that no county shall be divided between two districts. Section 202 prescribed the initial allocation of representatives and Section 203 determined the initial groupings of counties into senatorial districts. These original pportionments of Senate and House have continued in effect until the present. If ? 284 is taken literally there is obvious incompatibility between itand Article IX. However, all the provisions were adopted simultaneously in the constitution of 1901. In an advisory opinion the Supreme Court of Alabama held that a proposed consti252] BAKER V. CAR R 313 Representatives must depart substantially from the population standard, asthe Alabama constitutional provisions require,'72 then \"it may well be\" that representation according to population must \"to some extent\" be reflected inboth Houses. Whether this latter requirement was thought to follow solely from the Fourteenth Amendment the court did not make clear, although that appears to have been its view; here and throughout the opinion, however, there was a confusing interweaving of State and federal constitutional arguments. Indeed it is not clear whether the court meant o advance as an independent ground for invalidating the proposed constitutional amendment that under State law the State constitution was not amendable inthe manner proposed.178 In holding the statutory eapportionment invalid the court chose the House of Representatives provisions as the chief target of its criticism. The Senate provisions were \"a step in the right direction\" though \"an extremely short step.\" They eliminated a few of the more glaring disparities but left control of the Senate in 27.6 per cent of the people, \"an improvement of only 2.6 per cent over the present control f 25.1 per cent,\" and they also left wide disparities tutional mendment providing for allotment of representatives on a bracket system, with a maximum of 12 representatives for the largest counties and a minimum of one for counties with less than 38,500 population each, was consistent with S 284. It also held that a proposal for giving one senator to each county under 650,000 population and two to each county over that number was not consistent with S 284, but that its adoption would be lawful and would impliedly repeal ? 284. Opinion of the Justices, 263 Ala. 158 (1955). The district ourt's repeated reference to? 284 as the \"controlling or dominant provision\" of the Alabama constitution is difficult to understand. 172 What the court apparently regarded as a substantial departure from the \"population standard\" would necessarily result, under either the present or the proposed constitutional provisions, from the limit on the size of the House of Representatives in combination with the requirement that each county have at least one representative. While the principle here is the same as that which determines the federal House of Representatives, the resulting disparities in any particular State may of course be greater than in the case of Congress. 173s Despite the Alabama Supreme Court opinion referred to in note 171, supra, the district ourt expressed doubt hat it would be followed in view of the fact that the Alabama court had divided 4-3 on the question and that two of the majority, but none of the dissenters, had since been replaced. The district court said: \"The manifest uncertainty of the legality of the proposed constitutional amendment ... forces this Court o the conclusion that he Legislature may not have complied with the State Constitution in the passage of such an Act.\" 314 THE SUPREME COURT REVIEW [1962 existing in the weights of individual votes as between the most populous and least populous groups of districts. The House of Representatives provisions, however, were \"totally unacceptable\" because \"no rational reapportionment plan was followed.\" This characterization is difficult to follow. What he legislature obviously did was distribute among the larger counties the 39 representatives remaining after giving each county one, allowing a maximum of 12 to Jefferson, the largest county, and allowing proportionate extra representation to the others. Thus Jefferson County with 634,000 population was given 12 representatives, Mobile with 314,000 received 6, Tuscaloosa with 109,000 received 3, and so on. Disparities within the \"brackets\" which were allotted extra representatives do not appear great; for example, the largest 3-representative county has a population of 117,000 and the smallest 95,000. That the court should consider this not a \"rational\" plan is incomprehensible, unless it meant that amathematical formula, orsome particular mathematical formula, must be employed. The latter inference is suggested by the court's contrasting endorsement of the \"equal proportions method,\" adopted in the proposed constitutional amendment, as a \"known and accepted\" standard of apportionment. As a further reason for invalidating the reapportionment statute the court observed that it would not go into effect until the election of 1966 and that here was no good reason why the plaintiffs should be thus postponed in the enjoyment of their rights. It deserves note, however, that he members of both houses of the Alabama legislature are elected for four-year terms.'74 If the legislature considered that he interval between July 12 and the date of the general election in November was too short to permit reasonable opportunity for selecting candidates and holding campaigns in the newly constituted districts, he election of 1966 was the earliest next date which could have been chosen. Itwas also, of course, the earliest date at which an election under the proposed constitutional amendment could be held since approval of the amendment at a general election was a prerequisite. The court considered only the latter factor and deemed it eliminated by the ruling invalidating the proposed amendment. On July 25 the court entered a decree enjoining all election officials in Alabama from taking any steps in connection with the 174 Ala. Const., art. IV, 5 46. 252] BAKER V. CARR 315 holding of elections for members of the State legislature \" xcept and in accordance with the apportionment of the Alabama Legislature as hereinafter specifically set out.\"17 It then decreed the number of representatives each county should have, adopting in this respect the apportionment prescribed in the proposed constitutional amendment, and it specified the composition of the 35 senatorial districts, adopting in this respect the apportionment prescribed in the invalidated new statute. It ordered officials of the State Democratic and Republican Committees, together with certain State officers, to take the necessary steps to nominate candidates for an election of the new legislature in November, and it decreed that the new apportionment should remain in effect until the legislature reapportions itself \"in accordance with the equal protection provisions of the Fourteenth Amendment.\" In adopting this apportionment the court made clear that it did not regard it as meeting the constitutional standard permanently required but that it preferred taking parts of legislation already passed by the legislature to imposing a wholly new apportionment of the court's own devising. It expressed the hope that the revisions ordered would \"break the stranglehold\" on the legislature and enable it to reapportion itself constitutionally. On August 25 Mr. Justice Black denied a stay.176 D. THE GEORGIA C SES 1. The county-unit case. Within hours after Baker v. Carr was announced, the attack on the so-called county-unit system of voting for Statewide offices was renewed. In Sanders v. Gray\"77 a voter in Fulton County, Georgia's most populous county, sought a declaration of the invalidity of the Neill Primary Act,178 the county-unit statute, and an injunction against the holding of any primary under 175 Decree, Sims v. Frink, Civil Action No. 1744-N (M.D. Ala.), filed July 25, 1962. 176 N.Y. Times, August 26, 1962, p. 42, col. 3. The reapportionment problem ay have reached its apex of irony in the statement a tributed toMr. Justice Black in denying the stay: \"All preparations for this primary appear to have been made. No facts are alleged or shown which in my judgment would support a stay that would so drastically disrupt the state's primary plan.\" 177 203 F. Supp. 158 (N.D. Ga. 1962). 17s Ga. Laws 1917, p. 183 et seq., as amended by Ga. Laws 1950, p. 79, GA. CODE ANN. ?? 34-3213 to 34-3218. 316 THE SUPREME COURT EVIEW [1962 its terms. The governor, not waiting for action by a court, called a special session of the legislature shortly afterward\"79 and on April 27 a new county-unit statute was enacted.'s8 On April 28 the federal district ourt heard and granted the plaintiff's application for what the court termed a \"temporary\" injunction.
Citations
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Journal ArticleDOI
TL;DR: The most recent explanations for the existence of committee systems in legislative chambers have posited that committees are the agents of one of three very different principal actors: (1) individual members (distributive theory), (2) the full chamber (informational theory), or (3) the major political party (partisan theory).
Abstract: The most recent explanations for the existence of committee systems in legislative chambers have posited that committees are the agents of one of three very different principal actors: (1) individual members (distributive theory), (2) the full chamber (informational theory), or (3) the major political party (partisan theory). In addition to defining and operationalizing the concept of institutional committee system autonomy, I put forth and test several hypotheses linking these three explanations to committee system autonomy. In the end, the results show empirical support for the informational theory over the distributive and partisan theories.

22 citations

01 Jan 2008
TL;DR: Hickey as mentioned in this paper used the concept of constitutive rhetoric to examine the Supreme Court's reapportionment and redistricting decision, arguing that in times of historical crisis, speakers possess the ability to repair the language of the community and reshape the identity of the communities.
Abstract: Reconstituting Representation: The Supreme Court and the Rhetorical Controversy over State and Congressional Redistricting. (December 2008) Jeremiah Peter Hickey, B.S., St. John Fisher College; M.A., SUNY Brockport Chair of Advisory Committee: Dr. James Arnt Aune Constitutive rhetoric focuses on the idea that in times of historical crisis, speakers possess the ability to repair the language of the community and reshape the identity of the community. This dissertation relies upon the concept of constitutive rhetoric to examine the Supreme Court’s reapportionment and redistricting decision. By employing constitutive rhetoric, the Supreme Court reacts to the crisis of representation because of malapportionment and redistricting to transform our Constitutional republic to a Constitutional democracy and, further, to debate competing visions of representation and democracy necessary to sustain political life and the democratic experience. Chapter I offers readers a literature review on constitutive rhetoric, a literature review on reapportionment and redistricting, and presents readers with an outline of the dissertation. Chapter II provides a brief history of redistricting in the United States since Colonial times, the development of apportionment and redistricting law at the state court level, and the Supreme Court’s invention of a rhetorical tradition in apportionment and districting law before the Reapportionment Revolution. In the last section of Chapter II, I

15 citations

Journal ArticleDOI
TL;DR: For example, a House-sanctioned lawsuit against the Obama administration on enforcement of the Affordable Care Act (ACA) was recently granted standing to proceed on the merits regarding whether the administration spent money on ACA implementation that was not appropriated by Congress as discussed by the authors.
Abstract: [I]t is the exclusive province of [C]ongress to change a state of peace into a state of war (UnitedStates v Smith 1806, 1230) [I]t is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance (Baker v Carr 1962, 211-12) [N]one of the legislation drawn to the court's attention may serve as a valid assent to the Vietnam War Yet it does not follow that plaintiffs are entitled to prevail (Mitchell v Laird 1973, 616) War Is a Three-Branch Question From the founding to 1950, war usually proceeded in constitutional order: congressional authorization followed by executive enforcement Over that century and a half, federal judges adjudicated dozens of war-related disputes raised by private litigants that hinged on executive branch adherence to Congress's prior legislative direction Today, presidents of both parties order new offensive military actions abroad without explicit congressional consent before or even during the conflict Although House and Senate majorities eventually support these actions one way or another (bills and/or appropriations), on 10 occasions, members of Congress (up to 110 at a time) challenged presidential wars in federal court These unsuccessful lawsuits deserve new attention because they reflect a quiet, but steady, three-branch constitutional revolution on war that has taken place in the United States, under both parties' watch and under a variety of foreign policy contexts If all three branches now interpret congressional silence as consent, constitutional war processes have flipped, and the War Powers Resolution is a dead letter This article offers three arguments about these developments, using case law, institutional archives, and interviews with members of Congress and their attorneys (1) First, there is no constitutional reason for federal courts to demur on war powers suits filed by members of Congress, outside of decades of judge-made precedent Federal judges and scholars are divided on whether courts should take these cases, not whether they can Second, federal courts hold member--plaintiffs to a different standard than private interest litigants Members of Congress must show supermajority disapproval of the president's unilateral actions whereas private war litigation once hinged on prior simple majority authorization of the action Third, the legal postures of all three branches reflect deeply ingrained institutional habits, not partisan differences Unlike other public policy areas, presidential war is not ideologically divisive Reflecting this new normal, the United States has been engaged in a military campaign against the so-called Islamic State in Iraq and Syria (ISIS) since August 2014, with no Authorization for the Use of Military Force (AUMF) According to the Department of Defense, Operation Inherent Resolve has cost an average of $11 million per day for 450 days of operations, which destroyed or damaged over 16,000 targets (2) While calling for new AUMF in the State of the Union Address in January 2015, and sending a proposal to Congress earlier that year, President Barack Obama and his administration maintained that the necessary authorization is already in place through the 2001 and 2002 AUMFs (against al-Qaeda and Iraq, respectively; Weed 2015b) While ISIS-related terrorist attacks in France have fueled some bipartisan criticism of administration strategy, a new AUMF is unlikely (Carney 2015) Despite repeated cries of "lawlessness" against the president on domestic policy actions, members of Congress have not pursued a lawsuit on the ISIS actions Even if members did band together to file a suit that challenged the current ISIS campaign, it is unlikely to jump the formidable hurdles to member suits that federal courts have built over four decades However, a House-sanctioned lawsuit against the Obama administration on enforcement of the Affordable Care Act (ACA) was recently granted standing to proceed on the merits regarding whether the administration spent money on ACA implementation that was not appropriated by Congress (see United States House of Representatives v …

8 citations

Journal ArticleDOI
TL;DR: The recent reapportionment decisions mark a foreboding aboutface. as mentioned in this paper pointed out that the Court has moved from its original position, that apportionment laws dealt with subjects so intertwined with group socioeconomic content that they constituted political questions better decided by elected officials in contact with political reality, to the position that whenever the underrepresented areas were denied their constitutional rights.
Abstract: A. SPENCER HILL Eastern New Mexico University T HE MORE THE AUTHOR has reflected upon the reapportionment &decisions, the more they appear to him to resemble the decisions delivered by the Supreme Court at the turn of the century relative to the constitutionality oflaws regulating wages and hours. Though there are differences between the wages and hours decisions and the reapportionment decisions, both types were based on dogmatic conceptions of equality, both assumed the fundamental soundness of opposite social theories without attempting to prove them, and both rejected judicial self-restraint and the pragmatic examination of inter-institutional re ationships. In the later wage and hour cases, the Court followed suggestions made by Justice Holmes in his earlier dissent, moving from its reliance primarily upon dogmatic theory to dependence upon a realistic pragmatic examination. Instead of assuming, as did Spencerian theory, that bargaining was a private relation between an individual employee and an individual employer, and that wage and hour legislation was by definition an arbitrary interference in the personal liberty of employer and employee, the Judges examined the real world of bargaining relati'onships and found it so fraught with public consequences that they decided that federal and state legislation in these areas did not violate personal rights. Whether or not legislation was arbitrary in terms of the factual social conditions, was to be determinned by careful examination of the real social world-not by mere reference to abstract theory. The recent reapportionment decisions mark a foreboding aboutface. The Court has moved from its original position, that apportionment laws dealt with subjects so intertwined with group socioeconomic content that they constituted political questions better decided by elected officials in contact with political reality, to the position that whenever apportionment laws departed from per-capita equality in representation, individuals in the under-represented areas were denied their constitutional rights.

1 citations

Reference EntryDOI
15 Oct 2002
TL;DR: A Thought Experiment Not Far Removed from Reality as discussed by the authors has been conducted to evaluate the effect of technological enhancements on equality and other values in the context of technological enhancement in the US, and its effects on equality.
Abstract: Introduction Meanings of Enhancement Mapping Meanings of “Equality” onto Meanings of “Enhancement,” and Vice Versa Technological Expectations: Germ-Line and Somatic Enhancements The Idea of Enhancement Competing Versions of (In)Equality A Thought Experiment Not Far Removed from Reality Equality Wars: Conflicting and Concurring Versions of Equality and Inequality, Remedies for Inequality; Equality, Enhancement, and Respect for Persons Equality and Other Values: Conflicts and Connections Distributional Equality Generally; Distribution That Transforms the Distributees; Distributional and Nondistributional Equalities Enhancement and Its Effects on (In)Equality; (Non)Distribution of Enhancement Resources; Regulatory Choices Nondistribution Options: Nonallocation at the Macro Level; Restrictions on Manufacture, Distribution, and Use; Black Markets; Paternalism and Community Self-Protection Equality Impacts of Technological Enhancement: More on Distributional Options Constitutional Considerations in Brief Constitutional Frameworks Paths of Constitutional Interpretation Constitutional Equality Standards Congressional Powers to Implement Constitutional Equality Standards Keywords: biotechnology; policy