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Winner of the Henry Adams Prize from the Society for History in the Federal Government
A Washington Post Notable Work of Nonfiction
A Slate Best Book of 2014
The inside story of the Supreme Court decisions that brought true democracy to the United States
As chief justice of the U.S. Supreme Court, Earl Warren is most often remembered for landmark rulings in favor of desegregation and the rights of the accused. But Warren himself identified a lesser known group of cases-Baker v. Carr, Reynolds v. Sims, and their companions-as his most important work. J. Douglas Smith's On Democracy's Doorstep masterfully recounts the tumultuous and often overlooked events that established the principle of "one person, one vote" in the United States.
Before the Warren Court acted, American democracy was in poor order. As citizens migrated to urban areas, legislative boundaries remained the same, giving rural lawmakers from sparsely populated districts disproportionate political power-a power they often used on behalf of influential business interests. Smith shows how activists ranging from city boosters in Tennessee to the League of Women Voters worked to end malapportionment, incurring the wrath of chambers of commerce and southern segregationists as they did so. Despite a conspiracy of legislative inaction and a 1946 Supreme Court decision that instructed the judiciary not to enter the "political thicket," advocates did not lose hope. As Smith shows, they skillfully used the Fourteenth Amendment's Equal Protection Clause to argue for radical judicial intervention. Smith vividly depicts the unfolding drama as Attorney General Robert F. Kennedy pressed for change, Solicitor General Archibald Cox cautiously held back, young clerks pushed the justices toward ever-bolder reform, and the powerful Senate Minority Leader Everett Dirksen obsessively sought to reverse the judicial revolution that had upended state governments from California to Virginia.
Today, following the Court's recent controversial decisions on voting rights and campaign finance, the battles described in On Democracy's Doorstep have increasing relevance. With erudition and verve, Smith illuminates this neglected episode of American political history and confronts its profound consequences.
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J. Douglas Smith is the author of Managing White Supremacy: Race, Politics, and Citizenship in Jim Crow Virginia, which received the 2003 Library of Virginia Literary Award in Nonfiction. He is the director of humanities at the Colburn Music Conservatory and lives in Los Angeles with his wife and two children.Excerpt. © Reprinted by permission. All rights reserved.:
1 ROTTEN BOROUGHS
The problem of apportionment, like many episodes in the contested history of democracy in the United States, reflects one of the deepest and most long-standing political and cultural divides in American society—the divide between city and countryside, between coast and heartland. Addressing delegates to the 1894 New York Constitutional Convention, Henry J. Cookingham, a lawyer and former state representative from Oneida County, disparaged residents of the state’s rapidly growing cities, and especially their corrupt political leaders, as he argued passionately in favor of an “honest, fair and just apportionment” that would ensure continued rural control of the state. “I say without fear of contradiction,” he said, “that the average citizen in the rural district is superior in intelligence, superior in morality, superior in self-government, to the average citizen in the great cities.”1
More than three decades later, Baltimore journalist and satirist H. L. Mencken reached a decidedly different conclusion. Looking ahead to the 1928 presidential election, Mencken noted that “the essential struggle in America, during the next fifty years, will be between city men and yokels. The yokels have ruled the Republic since its first days—often, it must be added, very wisely. But now they decay and are challenged, and in the long run they are bound to be overcome.” He added, with his typically unsparing disdain, that “the yokels hang on because old apportionments give them unfair advantages. The vote of a malarious peasant on the lower Eastern Shore counts as much as the votes of twelve Baltimoreans. But that can’t last. It is not only unjust and undemocratic; it is absurd. For the lowest city proletarian, even though he may be farm-bred, is at least superior to the yokel … In the long run he is bound to revolt against being governed from the dung-hill.”2
While guilty of employing the crudest stereotypes in their rhetoric, Cookingham and Mencken were right that apportionment was one of the fundamental political issues of their time. Mencken’s city dwellers did indeed revolt, although it would take another thirty-five years and the further erosion of their political voice before they succeeded. In the interim, the rural and small-town citizens so admired by Cookingham saw their numbers thin and demographic forces turn against them. From his vantage point in the 1890s, Cookingham looked back to an earlier day, prior to the waves of immigration and urbanization that so profoundly shaped and changed the United States, and imagined a Jeffersonian golden era in which a few learned men governed wisely on behalf of the entire populace. Even as he noted the contributions that such men made in the early years of the American experiment, Mencken mocked those who struggled to cope with the changes occurring around them and who clung to power in a manner at odds with the basic principles of representative democracy. In assuming that the advance of civilization moved in one direction, from farm to city, Mencken set aside his predilection for slandering the intelligence of most people, no matter where they resided, and offered an alternative vision to Cookingham’s, one based on the conviction that the voice of every individual should carry the same weight in the political process.
Disputes over the proper basis of representation in the United States have their origins in the British method for determining parliamentary representation, from which colonial practices derived. In the British model, towns, or “boroughs,” were assigned representation in the House of Commons. As British citizens moved around and once flourishing population centers declined, representation remained fixed and ultimately produced what was called a “rotten borough” parliament in which sparsely inhabited regions, typically controlled by an absentee landlord, enjoyed considerable political clout. When Lord John Russell rose before the House of Commons in March 1831 to introduce a Reform Bill aimed at eliminating more than fifty rotten boroughs and reducing the representation of thirty other sparsely populated constituencies by half, he cited as evidence one village, Old Sarum in Wiltshire, that contained three houses and fifteen persons yet sent two members to the House of Commons. Fourteen houses in the village of Newtown and twenty-three houses in Gatton also sent representatives. By contrast, tens of thousands of inhabitants of rapidly growing cities, such as the rising industrial centers Manchester, Birmingham, and Leeds, had no representation at all. Imagining the reaction of a visitor to Britain, Russell asked his colleagues, “Would not such a foreigner be much astonished if he were taken to a green mound, and informed that it sent two members to the British Parliament?—if he were shewn a stone wall, and told that it also sent two members to the British Parliament; or, if he walked into a park, without the vestige of a dwelling, and was told that it, too, sent two members to the British parliament?” Finally passed more than a year later, the Reform Act of 1832 eliminated the rotten boroughs and expanded the franchise in Great Britain. While it did not produce the same kind of extremes as the English model, representation in the early American colonies also emphasized place over population. Virginia allotted two seats in the House of Burgesses to each county, regardless of the number of people living in each, while most towns in New England sent a representative to their legislature.3
In the mid-eighteenth century, mounting revolutionary fervor in the colonies, and in particular the notion of no taxation without representation, contributed to demands for greater political equality. In his Notes on the State of Virginia, Thomas Jefferson took issue with the malapportionment of his state’s governing body and proposed instead a model constitution in which each county sent delegates to the legislature “in proportion to the number of its qualified electors.” As he argued elsewhere, “For let it be agreed that a government is republican in proportion as every member composing it has his equal voice in the direction of his concerns … by representatives chosen by himself.” Responding to the threat of violence from frontiersmen who felt politically powerless, Pennsylvania adopted a new constitution in 1776 based on the idea that “representation in proportion to the number of taxable inhabitants is the only principle which can at all times secure liberty, and make the voice of a majority of the people the law of the land.” In Massachusetts a year later, citizens from Essex County denounced the manner in which the commonwealth granted a delegate to every township and demanded that “representatives be apportioned among the respective counties, in proportion to their number of freemen.”4
Such pronouncements did not, of course, lead to political equality for all citizens in the new nation. Women, most African Americans, and many whites were denied the right to vote from the outset. But even among those who had access to the ballot, one person’s vote could prove substantially more or less consequential than another’s. At the state level, a general fear among the propertied classes that the laboring masses and frontier settlers lacked the necessary qualities for self-government led to the imposition of various suffrage restrictions and ensured that residents of certain locales continued to exercise greater power than their numbers would have otherwise indicated. Even as states abolished suffrage restrictions for all white males, a process largely completed by the 1830s, malapportionment limited the political power of the newly enfranchised and ensured that a well-to-do minority in most states maintained control of at least one legislative chamber, and thus a veto power over the entire legislative process. At the federal level, of course, the architects of the U.S. Constitution had reached a compromise by allowing small states the same number of representatives in the Senate as their much more populous neighbors. The Founders did apportion seats in the House of Representatives according to population, but they guaranteed at least one representative to every state, no matter its population, a significant caveat that would figure prominently in the reapportionment debates of the 1960s.5
The formation of new states in the late eighteenth and early nineteenth centuries pushed the nation toward a greater embrace of political equality for all white men. Aided by the Northwest Ordinance of 1787, which set forth a method for the establishment of future states beyond the Appalachian Mountains and guaranteed “a proportionate representation of the people in the legislature,” a number of new western states adopted apportionments based on population. With the admission of California in 1850, the citizens of the new state, the Union’s thirty-first, wrote into their constitution an explicit population-based apportionment for both branches of their legislature. Meanwhile, some older states, such as Massachusetts, abandoned systems of representation that had allowed distinct minorities to control the state’s legislative chambers. Addressing the residents of Quincy at the 1853 state constitutional convention, Charles Francis Adams had helped the cause by denouncing the tyrannical power accumulated by residents of small towns. Within a few years, Massachusetts adopted a new system of apportionment that tied representation more closely to population. A century later, Massachusetts remained one of the most equitably apportioned states in the nation.6
In most states, however, the trend toward fairer representation lost momentum in the late nineteenth and early twentieth centuries as massive waves of immigration swelled the populations of the nation’s cities. Millions of Catholics and Jews, primarily from eastern and southern Europe, began to flock to the factories and mills of the industrializing nation. These laborers not only joined a growing urban-based working class but also provided the votes municipal political machines, such as New York’s Tammany Hall, used to assume control over local governments. Meanwhile, significant internal migrations were in motion, as hundreds of thousands of rural Americans, white and black, left their farms in search of industrial jobs. The political implications of such demographic transformations—and in particular the empowerment of urban, working-class, Catholic, Jewish, and African American voters—terrified Henry Cookingham and like-minded men and women throughout the United States.7
Residents of small towns and rural areas, often still in control of their states despite what was happening in the cities, introduced numerous measures to maintain political control. In state after state, they forced the adoption of constitutional and statutory provisions that protected rural and small-town minorities. Delaware and Mississippi based representation in both branches of the legislature on area and gave no consideration whatsoever to population. A dozen states did apportion both legislative chambers without regard to area and instead counted people, qualified voters, or, in the case of Indiana, male inhabitants over the age of twenty-one. But the remaining states relied on some combination of population and area, and more often than not added qualifiers that diminished the effectiveness of individual voters. States as geographically and demographically distinct as New Jersey and New Mexico, for example, apportioned one state senator to each county and ostensibly based representation in the second chamber on population, but only after guaranteeing each county at least one legislator in this chamber as well. New York and Pennsylvania set limits on the maximum number of senators from a given county, while Florida, Georgia, and Maine did the same in the apportionment of their lower chambers. Vermont and Connecticut ignored the example of Massachusetts and continued to allow each township, no matter how minuscule, its own representative.8
Legislative inaction was just as effective a tool as constitutional and statutory provisions. Most states had long mandated the reapportionment of at least one branch of the legislature at regular intervals, typically after each decennial census, and more than half of the states required the regular reapportionment of both branches. Lawmakers, however, frequently chose self-interest over the law. Opting for what became known as the “silent gerrymander,” they allowed district boundaries to remain fixed for decades. Only eighteen of forty-eight states redrew boundaries in the wake of the 1940 census. Legislators in Oregon ignored their obligations for a half century after 1907. Illinois established districts in 1910 that remained in place until 1955, while Pennsylvania and Indiana reapportioned in the early 1920s but not again for thirty and forty years, respectively. Despite constitutional requirements to reapportion every ten years, Alabama and Tennessee set districts in 1901 that did not change for more than sixty years.9
With each passing decade, the political influence of urban residents shrank even more in relation to their proportion of the population. Whether the result of legislative initiative or intentional neglect, by 1960 malapportionment had produced staggering inequality in virtually every state in the union. A town of 38 residents in Vermont constituted the smallest legislative district in the United States and elected the same number of representatives—one—as the state capital, Burlington, population 33,000. In New Jersey, the state’s twenty-one senators represented as few as 48,555 people or as many as 923,545. In Georgia, house districts contained between 1,876 and 185,422 constituents. Senate districts in Georgia ranged from 13,050 to 556,326, in Idaho from 915 to 93,460, and in Arizona from 3,868 to 331,755. In California, more than 6 million residents of Los Angeles County, nearly 40 percent of the state’s total population, elected just one state senator, as did the 14,294 inhabitants of three sparsely populated counties. California’s thirty-eighth senatorial district (Los Angeles County) was not only the most populous legislative district in the United States, but had five times more residents than the second largest, a senate district in Texas.10 (See appendix.)
In addition to comparing the populations of the largest and smallest districts in a given legislative chamber, political scientists measured malapportionment by looking at the percentage of the population living in districts represented by a majority of a legislative body. In January 1962, only five states—Massachusetts, New Hampshire, Oregon, West Virginia, and Wisconsin—apportioned districts so that majorities in both chambers of the legislature represented at least 40 percent of the population. In twenty-three states, by contrast, the theoretical minimum in the state senate was less than 30 percent, and in ten of those, the figure did not reach 20 percent. Lower legislative chambers tended to be slightly more representative. In fifteen states, theoretical minimums of less than 30 percent controlled a majority in the lower chamber, and in five of those states, 20 percent or less proved sufficient. Florida held the distinction as the only state in which legislative majorities in both branches of the legislature represented less than 20 percent of the residents. In California, a majority of the forty-member senate represented as few as 10.7 percent of the state’s nearly sixteen million residents, making the California senate the second most malapportioned legislative body in the United States. Only the Nevada senate, in which a majority represented 8 percent of the state’s 285,278 residents, was less re...
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