Thursday, November 24, 2005

One man, one vote?

I had hesitated to breach this subject, as it is a specialty of Misha's, but as he has not rushed in...

This begins to address what Sen. Biden has called a potential "extraordinary circumstance" that should permit a filibuster. Sen. Biden is not a member of the Gang of 14 that introduced this standard and may not be a competent authority.

It is my bet that Alito will openly support Baker v Carr but be more guarded on Reynolds v Sims.

Should states be allowed to have legislative districts apportioned, for instance, by territory, if they wish? The Constitution guarantees republican government in the states, but does it really mandate one-man-one-vote? Many republican governments have thought it advisable to OVERREPRESENT rural districts (Japan), or sections of the country that are the home to minority ethnic groups (UK). Why should it be viewed as impermissible BY IMPLICATION to adopt such measures here (and, pace Misha, against the express example of the US Sentate)?

So long as the overrepresentation is of the WEAK, should this not be seen as a question of policy, rather than principle? While Faction should be feared, should not counterweight-to-concentration be another prudential tool against tyranny?


Misha Tseytlin said...

The short answer is that it is a violation of the natural rights principles (that eventually became imbeded in the equal protection clause of the 14th Amendment) that each citizen have their vote count the same as every other.

"Apportionment" is a nice way to tint what is really going on with these schemes- it is giving people in some areas basically more votes than those in other areas. If a state decided to give everyone in rural counties 6 votes as opposed to 1 vote for everyone living in cities, I think almost no one would have a problem declaring that unconstitutional. So why should a proxy that has the exact same affect be any more unconstitutional?

In short, Sims was a rather easy case, in my view, and Alito's opposition to that case is rather puzzling to me. The only thing I can think of is that Sims was an example of a broader anti-state rights bent of the Warren Court, and as such, it was lumped into many conservatives (rightful) condemnation of the Warren Court in general.

As far is this statement: "So long as the overrepresentation is of the WEAK, should this not be seen as a question of policy, rather than principle?"
I think Charles has gone a little bit on the liberal deap end on this one. Isnt one of the hallmarks of conservative equal protection jurisprudence that equal protection applies to all people, regardless of whether the S.C. determines they are politically powerful or not (see: Scalia, Thomas in the affirmative action area). I see no way that consistent with moral principles that some law-abiding citizens should get more votes than others...

Charles Iragui said...

"Conservative" is a word, as this subject illustrates, capable of numerous definitions.

Edmund Burke certainly would have objected to your argument, straight out of the French Revolution. The Founding Fathers, too, were much more interested in natural rights of individuals than in their political rights. In fact, it is contestable whether most of them even believed in INDIVIDUAL political rights. How else can you account for Hamilton's advocating American constitutional monarchy?

Equal protection, a subject on which I am far from knowledgeable, I venture does not treat every group of humans as a protected class. Is it not the case that wealth, for instance, cannot determine, ironically, class? Are city people, against rural people, a protectable class? I am guessing they are not.

Though I enjoy provoking debate, I must admit that I do not believe that apportionment along any other principle than population is good policy (as distinct from constitutionality). The Japanese. the Brits, Germans and Malaysians have all suffered to one extent or another from corrective overrepresentation apportionment. And Misha's the expert on the costs of the US Senate's unequal representation, though it seems less obviously noxious than it has proved in those other countries.

Seems like at best a compromise necessary to get the greater project done (eg Connecticut compromise).

I'd like to add that I have no idea what Alito thinks on apportionment other than the cryptic comment that rejected some part of the Warren Court's jurisprudence on the subject.

Scott said...

How do you distinguish the Senate, Micha, if you do? Is it a violation of natural rights?

Personally, I don't think anyone has a right to vote, in the same way they have a right to life, liberty, and estate.

Misha Tseytlin said...

Scott- I do not distinguish the Senate- 2 Senators per state should be gotten rid of as soon as possible. Also, I agree with Madison and Hamilton that 2 senators per state is a violation of natural rights. This is exactly why they fought so hard against 2 senators per state in the convention- unfortunately, they lost. In fact, this is the topic of my note, which is coming out in Georgetown Law Journal in February. I can send you an early copy if you are interested (just email me at

As for the right to vote- it may be different from a right to life, liberty in that it is not a negative liberty. But the way to articulate it is- no citizen capable of making his own decisions may be subjected to the authority on a state unless he has the same weight in choosing those who make the laws as every other citizen. It is really an equal represenation + consent of governed principle.