The Great Compromise

Philadelphia_ConventionIt has been said the summer of 1787 in Philadelphia was hot.  Delegates from twelve states gathered to revise the Articles of Confederation and Perpetual Union.  Debate ensued over revising the Articles or replacing them altogether.  The Virginia Plan, authored by James Madison, was proposed first.  Briefly, the plan was national in nature delegating significant new powers to the proposed government.  In fact, the first few weeks that summer the winds of change gusted strongly in favor of a national government.

As the weeks passed and Delegates from other states were seated opposition sprouted.   Smaller states recognized that the larger states would dominate the government.  In fact, the population of four states would constitute a majority of the population across all thirteen states.  Larger states believed they would contribute proportionally more resources therefore they should enjoy proportionally more representation.   Smaller states opposed the Virginia plan and Delegate Patterson of New Jersey introduced a second plan of government.  In this plan representation would be equal amongst the states regardless of population.

As the Delegates wilted from the heat, the debate over representation was growing hotter.   A divide over representation threatened to end the convention after seven weeks.  Delegates Roger Sherman and Oliver Ellsworth of Connecticut proposed what is now called the Great Compromise.  The compromise established representation in the lower house – the peoples’ house – based on population.  The upper house was to represent States’ interests at the federal level and would be based on equal representation from each state independent of population.

In other words, the Great Compromise recognized that representation is not solely based on population. Representation in the Senate was based on a geographic area not by population.  Today, the least populated state is Wyoming with ~570,000 people.  The most populated state is California with ~38 million people.  Both states (areas) have two Senators.

Likewise, every state except Nebraska has a bicameral legislature.  For nearly 180 years state legislatures were constituted by population and various other considerations.  For instance, Maryland had a fixed number of Senators for each of its twenty-four jurisdictions.  The Maryland General Assembly operated this way until the late 1960s.  In fact, most states operated this way until the late 1960s.

How did this change?

The Supreme Court sprinkled their judicial fairy dust on Section 1 of the 14th amendment and concluded the equal protection clause was intended to ensure one man equals one vote.  The case was Reynolds v. Sims.  Magically, nearly 100 years after the 14th amendment was ratified the Supreme Court discovered this hidden meaning.  The Warren Court opined that the equal protection clause requires seats in both houses of a bicameral legislature must be apportioned by population.  Therefore, state legislatures, typically the Senate or upper chamber, could not be based upon geographic subdivisions such as counties.

Demonstrably, Section 1 of the 14th amendment was intended to codify into the Constitution the Civil Rights Bill of 1866.  Nowhere in the legislative history of this section of the 14th amendment is the concept of one man one vote discussed.  Moreover, it was Section 2 of the 14th amendment that intended to punish states that denied the vote to the emancipated slaves.  Section 2 did not alter or rearrange or modify state powers over elections, rather it left the decision to the States (as it always had been) but said to the States, “if you do this these are the consequences”.  Furthermore, if the equal protection clause did mean what the Warren Court opined then, why was there any need for the 15th amendment or the 19th amendment for that matter?

Lastly, how is it States “got away” with this alleged violation for nearly one hundred years?  How did all the prior Courts get this wrong?  Could all those justices over the prior one hundred years have been wrong?  If so, what’s that say for the reputation of the Supreme Court if they were wrong for one hundred years perhaps they were wrong on every ruling during that one hundred year period.

In Reynolds v. Sims there are multiple considerations to the concept of one man one vote.  Malapportionment of federal congressional or state delegate districts has the potential to dilute votes.  This isn’t controversial.  What is controversial is the application of the equal protection clause to the elective franchise, and to prohibit states from organizing one chamber of their bicameral legislatures based on something other than population alone.  Justice Harlan issued a scathing opinion in dissent and articulates precisely how the other justices ignore the legislative intent and history of the amendment, the 100 years of practice in many states where at least one chamber of the legislature was apportioned not on population alone.

In fact, in 1961 only 11 of 50 states had representation based solely on population.  Moreover, at the time the 14th amendment was proposed and ratified the southern states had to modify their constitutions in such a manner that was acceptable to Congress.   Several of the southern states’ constitutions including provisions stipulating representation not solely based on population.  Northern and western states also had constitutions with similar provisions.  How could Congress have proposed the 14th amendment, debated it, and sent it to the states for ratification and approved the constitutions of the southern states if they were in violation of Section 1 of the amendment?

In dissent, Justice Harlan wrote the following (Note, Harlan’s writing is in BLUE and quotes he references are indented with quotations.  My writing is in BOLD but the same font and color as this writing.):

Had the Court paused to probe more deeply into the matter, it would have found that the Equal Protection Clause was never intended to inhibit the States in choosing any democratic method they pleased for the apportionment of their legislatures. This is shown by the language of the Fourteenth Amendment taken as a whole, by the understanding of those who proposed and ratified it, and by the political practices of the States at the time the Amendment was adopted. It is confirmed by numerous state and congressional actions since the adoption of the Fourteenth Amendment, and by the common understanding of the Amendment as evidenced by subsequent constitutional amendments and decisions of this Court before Baker v. Carr, supra, made an abrupt break with the past in 1962.

The comprehensive scope of the second section and its particular reference to the state legislatures preclude the suggestion that the first section was intended to have the result reached by the Court today. If indeed the words of the Fourteenth Amendment speak for themselves, as the majority’s disregard of history seems to imply, they speak as clearly as may be against the construction which the majority puts on them. But we are not limited to the language of the Amendment itself.

The history of the adoption of the Fourteenth Amendment provides conclusive evidence that neither those who proposed nor those who ratified the Amendment believed that the Equal Protection Clause limited the power of the States to apportion their legislatures as they saw fit. Moreover, the history demonstrates that the intention to leave this power undisturbed was deliberate, and was widely believed to be essential to the adoption of the Amendment.

In the House, Thaddeus Stevens introduced debate on the resolution on May 8. In his opening remarks, Stevens explained why he supported the resolution although it fell “far short” of his wishes:

“I believe it is all that can be obtained in the present state of public opinion. Not only Congress, but the several States, are to be consulted. Upon a careful survey of the whole ground, we did not believe that nineteen of the loyal States could be induced to ratify any proposition more stringent than this.”

In explanation of this belief, he asked the House to remember “that three months since, and more, the committee reported and the House adopted a proposed amendment fixing the basis of representation in such way as would surely have secured the enfranchisement of every citizen at no distant period,” but that proposal had been rejected by the Senate.

He then explained the impact of the first section of the proposed Amendment, particularly the Equal Protection Clause.

“This amendment . . . allows Congress to correct the unjust legislation of the States so far that the law which operates upon one man shall operate equally upon all. Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford ‘equal’ protection to the black man. Whatever means of redress is afforded to one shall be afforded to all. Whatever law allows the white man to testify in court shall allow the man of color to do the same. These are great advantages over their present codes. Now, different degrees of punishment are inflicted not on account of the magnitude of the crime, but according to the color of the skin. Now color disqualifies a man from testifying in courts, or being tried in the same way as white men. I need not enumerate these partial and oppressive laws. Unless the Constitution should restrain them, those States will all, I fear, keep up this discrimination and crush to death the hated freedmen.”

He turned next to the second section, which he said he considered “the most important in the article.  Its effect, he said, was to fix “the basis of representation in Congress.” In unmistakable terms, he recognized the power of a State to withhold the right to vote:

“If any State shall exclude any of her adult male citizens from the elective franchise, or abridge that right, she shall forfeit her right to representation in the same proportion. The effect of this provision will be either to compel the States to grant universal suffrage or so to shear them of their power as to keep them forever in a hopeless minority in the national Government, both legislative and executive.”

Closing his discussion of the second section, he noted his dislike for the fact that it allowed “the States to discriminate [with respect to the right to vote] among the same class, and receive proportionate credit in representation.”

Toward the end of the debate three days later, Mr. Bingham, the author of the first section in the Reconstruction Committee and its leading proponent, concluded his discussion of it with the following:

“Allow me, Mr. Speaker, in passing, to say that this amendment takes from no State any right that ever pertained to it. No State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws or to abridge the privileges or immunities of any citizen of the Republic, although many of them have assumed and exercised the power, and that without remedy. The amendment does not give, as the second section shows, the power to Congress of regulating suffrage in the several States.” [Emphasis added.]

He immediately continued:

The second section excludes the conclusion that, by the first section, suffrage is subjected to congressional law, save, indeed, with this exception, that, as the right in the people of each State to a republican government and to choose their Representatives in Congress is of the guarantees of the Constitution, by this amendment, a remedy might be given directly for a case supposed by Madison, where treason might change a State government from a republican to a despotic government, and thereby deny suffrage to the people.”  [Emphasis added.]

He stated at another point in his remarks:

“To be sure, we all agree, and the great body of the people of this country agree, and the committee thus far in reporting measures of reconstruction agree, that 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.”  [Emphasis added.]

In the three days of debate which separate the opening and closing remarks, both made by members of the Reconstruction Committee, every speaker on the resolution, with a single doubtful exception, assumed without question that, as Mr. Bingham said, supra, “the second section excludes the conclusion that, by the first section, suffrage is subjected to congressional law.” The assumption was neither inadvertent nor silent. Much of the debate concerned the change in the basis of representation effected by the second section, and the speakers stated repeatedly, in express terms or by unmistakable implication, that the States retained the power to regulate suffrage within their borders. Attached as Appendix A hereto are some of those statements. The resolution was adopted by the House without change on May 10.

Debate in the Senate began on May 23, and followed the same pattern. Speaking for the Senate Chairman of the Reconstruction Committee, who was ill, Senator Howard, also a member of the Committee, explained the meaning of the Equal Protection Clause as follows:

“The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States, and does away with the injustice of subjecting one caste of persons to a code not applicable to another. It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. Is it not time, Mr. President, that we extend to the black man, I had almost called it the poor privilege of the equal protection of the law? . . .”

But, sir, the first section of the proposed amendment does not give to either of these classes the right of voting. The right of suffrage is not, in law, one of the privileges or immunities thus secured by the Constitution. It is merely the creature of law. It has always been regarded in this country as the result of positive local law, not regarded as one of those fundamental rights lying at the basis of all society and without which a people cannot exist except as slaves, subject to a depostism [sic].”  [Emphasis added.]

Discussing the second section, he expressed his regret that it did “not recognize the authority of the United States over the question of suffrage in the several States at all.” He justified the limited purpose of the Amendment in this regard as follows:

“But, sir, it is not the question here what will we do; it is not the question what you, or I, or half a dozen other members of the Senate may prefer in respect to colored suffrage; it is not entirely the question what measure we can pass through the two Houses; but the question really is, what will the Legislatures of the various States to whom these amendments are to be submitted do in the premises; what is it likely will meet the general approbation of the people who are to elect the Legislatures, three fourths of whom must ratify our propositions before they have the force of constitutional provisions?”

“The committee were of opinion that the States are not yet prepared to sanction so fundamental a change as would be the concession of the right of suffrage to the colored race. We may as well state it plainly and fairly, so that there shall be no misunderstanding on the subject. It was our opinion that three-fourths of the States of this Union could not be induced to vote to grant the right of suffrage, even in any degree or under any restriction, to the colored race. . . .”

The second section leaves the right to regulate the elective franchise still with the States, .and does not meddle with that right.”  [Emphasis added.]

There was not in the Senate, as there had been in the House, a closing speech in explanation of the Amendment. But because the Senate considered, and finally adopted, several changes in the first and second sections, even more attention was given to the problem of voting rights there than had been given in the House. In the Senate, it was fully understood by everyone that neither the first nor the second section interfered with the right of the States to regulate the elective franchise.

Justice Harlan then discussed the debates of the state legislatures regarding the 14th amendment:

Reports of the debates in the state legislatures on the ratification of the Fourteenth Amendment are not generally available. There is, however, compelling indirect evidence. Of the 23 loyal States which ratified the Amendment before 1870, five had constitutional provisions for apportionment of at least one house of their respective legislatures which wholly disregarded the spread of population.

Ten more had constitutional provisions which gave primary emphasis to population, but which applied also other principles, such as partial ratios and recognition of political subdivisions, which were intended to favor sparsely settled areas.  Can it be seriously contended that the legislatures of these States, almost two-thirds of those concerned, would have ratified an amendment which might render their own States’ constitutions unconstitutional?

Nor were these state constitutional provisions merely theoretical. In New Jersey, for example, Cape May County, with a population of 8,349, and Ocean County, with a population of 13,628, each elected one State Senator, as did Essex and Hudson Counties, with populations of 143,839 and 129,067, respectively.  In the House, each county was entitled to one representative, which left 39 seats to be apportioned according to population. Since there were 12 counties besides the two already mentioned which had populations over 30,000, it is evident that there were serious disproportions in the House also. In New York, each of the 60 counties except Hamilton County was entitled to one of the 128 seats in the Assembly. This left 69 seats to be distributed among counties the populations of which ranged from 15,420 to 942,292. With seven more counties having populations over 100,000 and 13 others having populations over 50,000, the disproportion in the Assembly was necessarily large. In Vermont, after each county had been allocated one Senator, there were 16 seats remaining to be distributed among the larger counties. The smallest county had a population of 4,082; the largest had a population of 40,651, and there were 10 other counties with populations over 20,000.

Justice Harlan then addressed ratification by the “reconstruction” states:

Each of the 10 “reconstructed” States was required to ratify the Fourteenth Amendment before it was readmitted to the Union. The Constitution of each was scrutinized in Congress.  Debates over readmission were extensive. In at least one instance, the problem of state legislative apportionment was expressly called to the attention of Congress. Objecting to the inclusion of Florida in the Act of June 25, 1868, Mr. Farnsworth stated on the floor of the House:

“I might refer to the apportionment of representatives. By this constitution, representatives in the Legislature of Florida are apportioned in such a manner as to give to the sparsely populated portions of the State the control of the Legislature. The sparsely populated parts of the State are those where there are very few negroes, the parts inhabited by the white rebels, the men who, coming in from Georgia, Alabama, and other States, control the fortunes of their several counties. By this constitution, every county in that State is entitled to a representative. There are in that State counties that have not thirty registered voters; yet, under this constitution, every one of those counties is entitled to a representative in the Legislature, while the populous counties are entitled to only one representative each, with an additional representative for every thousand inhabitants.”

The response of Mr. Butler is particularly illuminating:

“All these arguments, all these statements, all the provisions of this constitution have been submitted to the Judiciary Committee of the Senate, and they have found the constitution republican and proper. This constitution has been submitted to the Senate, and they have found it republican and proper. It has been submitted to your own Committee on Reconstruction, and they have found it republican and proper, and have reported it to this House.”

The Constitutions of six of the 10 States contained provisions departing substantially from the method of apportionment now held to be required by the Amendment.  And, as in the North, the departures were as real, in fact, as in theory. In North Carolina, 90 of the 120 representatives were apportioned among the counties without regard to population, leaving 30 seats to be distributed by numbers. Since there were seven counties with populations under 5,000 and 26 counties with populations over 15,000, the disproportions must have been widespread and substantial. In South Carolina, Charleston, with a population of 88,863, elected two Senators; each of the other counties, with populations ranging from 10,269 to 42,486, elected one Senator. In Florida, each of the 39 counties was entitled to elect one Representative; no county was entitled to more than four. These principles applied to Dade County, with a population of 85, and to Alachua County and Leon County, with populations of 17,328 and 15,236, respectively.

It is incredible that Congress would have exacted ratification of the Fourteenth Amendment as the price of readmission, would have studied the State Constitutions for compliance with the Amendment, and would then have disregarded violations of it.

The facts recited above show beyond any possible doubt:

(1) that Congress, with full awareness of and attention to the possibility that the States would not afford full equality in voting rights to all their citizens, nevertheless deliberately chose not to interfere with the States’ plenary power in this regard when it proposed the Fourteenth Amendment;

(2) that Congress did not include in the Fourteenth Amendment restrictions on the States’ power to control voting rights because it believed that, if such restrictions were included, the Amendment would not be adopted; and

(3) that at least a substantial majority, if not all, of the States which ratified the Fourteenth Amendment did not consider that, in so doing, they were accepting limitations on their freedom, never before questioned, to regulate voting rights as they chose.

Even if one were to accept the majority’s belief that it is proper entirely to disregard the unmistakable implications of the second section of the Amendment in construing the first section, one is confounded by its disregard of all this history. There is here none of the difficulty which may attend the application of basic principles to situations not contemplated or understood when the principles were framed. The problems which concern the Court now were problems when the Amendment was adopted. By the deliberate choice of those responsible for the Amendment, it left those problems untouched.

Even if one were to accept the majority’s belief that it is proper entirely to disregard the unmistakable implications of the second section of the Amendment in construing the first section, one is confounded by its disregard of all this history. There is here none of the difficulty which may attend the application of basic principles to situations not contemplated or understood when the principles were framed. The problems which concern the Court now were problems when the Amendment was adopted. By the deliberate choice of those responsible for the Amendment, it left those problems untouched.

Justice Harlan goes on to explain what occurred after the 14th amendment was ratified:

The years following 1868, far from indicating a developing awareness of the applicability of the Fourteenth Amendment to problems of apportionment, demonstrate precisely the reverse: that the States retained and exercised the power independently to apportion their legislatures. In its Constitutions of 1875 and 1901, Alabama carried forward earlier provisions guaranteeing each county at least one representative and fixing an upper limit to the number of seats in the House. Florida’s Constitution of 1885 continued the guarantee of one representative for each county and reduced the maximum number of representatives per county from four to three. Georgia, in 1877, continued to favor the smaller counties. Louisiana, in 1879, guaranteed each parish at least one representative in the House. In 1890, Mississippi guaranteed each county one representative, established a maximum number of representatives, and provided that specified groups of counties should each have approximately one-third of the seats in the House, whatever the spread of population. Missouri’s Constitution of 1875 gave each county one representative and otherwise favored less populous areas. Montana’s original Constitution of 1889 apportioned the State Senate by counties. In 1877, New Hampshire amended its Constitution’s provisions for apportionment, but continued to favor sparsely settled areas in the House and to apportion seats in the Senate according to direct taxes paid; the same was true of New Hampshire’s Constitution of 1902.

In 1894, New York adopted a Constitution the peculiar apportionment provisions of which were obviously intended to prevent representation according to population: no county was allowed to have more than one-third of all the Senators, no two counties which were adjoining or “separated only by public waters” could have more than one-half of all the Senators, and whenever any county became entitled to more than three Senators, the total number of Senators was increased, thus preserving to the small counties their original number of seats.  In addition, each county except Hamilton was guaranteed a seat in the Assembly. The North Carolina Constitution of 1876 gave each county at least one representative and fixed a maximum number of representatives for the whole House. [Oklahoma’s Constitution at the time of its admission to the Union (1907) favored small counties by the use of partial ratios and a maximum number of seats in the House; in addition, no county was permitted to “take part” in the election of more than seven representatives. Pennsylvania, in 1873, continued to guarantee each county one representative in the House. The same was true of South Carolina’ Constitution of 1895, which provided also that each county should elect one and only one Senator. Utah’s original Constitution of 1895 assured each county of one representative in the House. Wyoming, when it entered the Union in 1889, guaranteed each county at least one Senator and one representative.

Justice Harlan continues with what is happening currently in the States:

Since the Court now invalidates the legislative apportionments in six States, and has so far upheld the apportionment in none, it is scarcely necessary to comment on the situation in the States today, which is, of course, as fully contrary to the Court’s decision as is the record of every prior period in this Nation’s history. As of 1961, the Constitutions of all but 11 States, roughly 20% of the total, recognized bases of apportionment other than geographic spread of population, and to some extent favored sparsely populated areas by a variety of devices, ranging from straight area representation or guaranteed minimum area representation to complicated schemes of the kind exemplified by the provisions of New York’s Constitution of 1894, still in effect until struck down by the Court today.  Since Tennessee, which was the subject of Baker v. Carr, and Virginia, scrutinized and disapproved today are among the 11 States whose own Constitutions are sound from the standpoint of the Federal Constitution as construed today, it is evident that the actual practice of the States is even more uniformly than their theory opposed to the Court’s view of what is constitutionally permissible.

The Court’s elaboration of its new “constitutional” doctrine indicates how far — and how unwisely — it has strayed from the appropriate bounds of its authority. The consequence of today’s decision is that, in all but the handful of States which may already satisfy the new requirements, the local District Court or, it may be, the state courts, are given blanket authority and the constitutional duty to supervise apportionment of the State Legislatures. It is difficult to imagine a more intolerable and inappropriate interference by the judiciary with the independent legislatures of the States.

It is well to remember that the product of today’s decisions will not be readjustment of a few districts in a few States which most glaringly depart from the principle of equally populated districts. It will be a redetermination, extensive in many cases, of legislative districts in all but a few States.

Recognizing that “indiscriminate districting” is an invitation to “partisan gerrymandering,” ante pp. 377 U. S. 578-579, the Court nevertheless excludes virtually every basis for the formation of electoral districts other than “indiscriminate districting.” In one or another of today’s opinions, the Court declares it unconstitutional for a State to give effective consideration to any of the following in establishing legislative districts:

(1) history;

(2) “economic or other sorts of group interests”;

(3) area;

(4) geographical considerations;

(5) a desire “to insure effective representation for sparsely settled areas”;

(6) “availability of access of citizens to their representatives”;

(7) theories of bicameralism (except those approved by the Court);

(8) occupation;

(9) “an attempt to balance urban and rural power.”

(10) the preference of a majority of voters in the state.

So far as presently appears, the only factor which a State may consider, apart from numbers, is political subdivisions. But even “a clearly rational state policy” recognizing this factor is unconstitutional if “population is submerged as the controlling consideration.

Finally, these decisions give support to a current mistaken view of the Constitution and the constitutional function of this Court. This view, in a nutshell, is that every major social ill in this country can find its cure in some constitutional “principle,” and that this Court should “take the lead” in promoting reform when other branches of government fail to act. The Constitution is not a panacea for every blot upon the public welfare, nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements. The Constitution is an instrument of government, fundamental to which is the premise that in a diffusion of governmental authority lies the greatest promise that this Nation will realize liberty for all its citizens. This Court, limited in function in accordance with that premise, does not serve its high purpose when it exceeds its authority, even to satisfy justified impatience with the slow workings of the political process. For when, in the name of constitutional interpretation, the Court adds something to the Constitution that was deliberately excluded from it, the Court, in reality, substitutes its view of what should be so for the amending process.

The federal constitution stipulated the House be based upon representation and the Senate based solely upon area.  The Great Compromise embodied the different principles of representation.   The urban/rural divide and the small state/large state differences present in the 1780’s remains an issue today.  Counties, just as states at the federal level, will vary in population, interests, and other factors.

If the principle of representation based upon population and area is constitutional at the federal level, has been followed since 1788, and has been used at the state level for one hundred years after the ratification of the 14th amendment, then it is clearly constitutional and has absolutely nothing to do with the equal protection clause of the 14th amendment.

One man one vote was made up out of whole cloth.  It is judicial fairy dust, sprinkled over the Constitution, to turn the original understanding of the 14th amendment on its head.  The mental gymnastics the justices performed to pervert and undermine the Constitution is astounding.  It is nine unaccountable, unelected, politically connected lawyers in black robes circumventing the amendment process defined in Article V of the Constitution to mold society and the Constitution according to their whims and personal policy preferences.  Once again the nationalists dealt a mighty blow to the federalists.

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