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Baker v Carr Frankfurter Dissent Excerpt Created:30-Apr-2022


A Sentinel for LIBERTY!

Our LIBERTY under God,


The Torchlight of Hindsight Reveals Truth!!!

[Full Case Baker v. Carr/Frankfurter 219]

Justice Frankfurter's Dissent covers a broad spectrum of the many factors behind the case, including an extensive history of representation apportionment and the question of the federal Judiciary's jurisdiction over applied political theory, if any! There is none!

I have only pasted the most important paragraphs, below, with Paragraphs 274-275, being most crucial to the Philosopher-Kings' (Reynolds v. Sims), [and, Philosopher-Kings/TOOLS] Assault on our Representative Republic.

Hindsight reveals these paragraphs in the light of historical analysis conducted by the University of North Carolina: Complicated Impact of One Person One Vote, published in 2002, 40-years after SCOTUS decided Baker v. Carr.

The researchers were surprised to find that, by scientific measurement methods, it was clear that existing conditions in the States before the impact of Baker v. Carr, had created better representation results than 40-years of Post-Baker v. Carr!

This is strong evidence that applying democratic political theory to representation in the form of "one person, one vote," and all that entails, through proportional representation and equal population district edicts from SCOTUS and Congress, achieves the opposite results to what is promised by those assaulting our Republican Form of Government! I've pasted the Summary and Conclusion to the study, below.


Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins, dissenting.


The Court today reverses a uniform course of decision established by a dozen cases, including one by which the very claim now sustained was unanimously rejected only five years ago. The impressive body of rulings thus cast aside reflected the equally uniform course of our political history regarding the relationship between population and legislative representation—a wholly different matter from denial of the franchise to individuals because of race, color, religion or sex. Such a massive repudiation of the experience of our whole past in asserting destructively novel judicial power demands a detailed analysis of the role of this Court in our constitutional scheme. Disregard of inherent limits in the effective exercise of the Court's 'judicial Power' not only presages the futility of judicial intervention in the essentially political conflict of forces by which the relation between population and representation has time out of mind been and now is determined. It may well impair the Court's position as the ultimate organ of 'the supreme Law of the Land' in that vast range of legal problems, often strongly entangled in popular feeling, on which this Court must pronounce. The Court's authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.

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But appellants, of course, do not rest on this claim simpliciter. In invoking the Equal Protection Clause, they assert that the distortion of representative government complained of is produced by systematic discrimination against them, by way of 'a debasement of their votes * * *.' Does this characterization, with due regard for the facts from which it is derived, add anything to appellants' case?


At first blush, this charge of discrimination based on legislative underrepresentation is given the appearance of a more private, less impersonal claim, than the assertion that the frame of government is askew. Appellants appear as representatives of a class that is prejudiced as a class, in contradistinction to the polity in its entirety. However, the discrimination relied on is the deprivation of what appellants conceive to be their proportionate share of political influence. This, of course, is the practical effect of any allocation of power within the institutions of government. Hardly any distribution of political authority that could be assailed as rendering government nonrepublican would fail similarly to operate to the prejudice of some groups, and to the advantage of others, within the body politic. It would be ingenuous not to see, or consciously blind to deny, that the real battle over the initiative and referendum, or over a delegation of power to local rather than state-wide authority, is the battle between forces whose influence is disparate among the various organs of government to whom power may be given. No shift of power but works a corresponding shift in political influence among the groups composing a society.


What, then, is this question of legislative apportionment? Appellants invoke the right to vote and to have their votes counted. But they are permitted to vote and their votes are counted. They go to the polls, they cast their ballots, they send their representatives to the state councils. Their complaint is simply that the representatives are not sufficiently numerous or powerful—in short, that Tennessee has adopted a basis of representation with which they are dissatisfied. Talk of 'debasement' or 'dilution' is circular talk. One cannot speak of 'debasement' or 'dilution' of the value of a vote until there is first defined a standard of reference as to what a vote should be worth. What is actually asked of the Court in this case is to choose among competing bases of representation ultimately, really, among competing theories of political philosophy—in order to establish an appropriate frame of government for the State of Tennessee and thereby for all the States of the Union.


In such a matter, abstract analogies which ignore the facts of history deal in unrealities; they betray reason. This is not a case in which a State has, through a device however oblique and sophisticated, denied Negroes or Jews or redheaded persons a vote, or given them only a third or a sixth of a vote. That was Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110. What Tennessee illustrates is an old and still widespread method of representation—representation by local geographical division, only in part respective of population—in preference to others, others, forsooth, more appealing. Appellants contest this choice and seek to make this Court the arbiter of the disagreement. They would make the Equal Protection Clause the charter of adjudication, asserting that the equality which it guarantees comports, if not the assurance of equal weight to every voter's vote, at least the basic conception that representation ought to be proportionate to population, a standard by reference to which the reasonableness of apportionment plans may be judged.


To find such a political conception legally enforceable in the broad and unspecific guarantee of equal protection is to rewrite the Constitution. See Luther v. Borden, supra. Certainly, 'equal protection' is no more secure a foundation for judicial judgment of the permissibility of varying forms of representative government than is 'Republican Form.' Indeed since 'equal protection of the laws' can only mean an equality of persons standing in the same relation to whatever governmental action is challenged, the determination whether treatment is equal presupposes a determination concerning the nature of the relationship. This, with respect to apportionment, means an inquiry into the theoretic base of representation in an acceptably republican state. For a court could not determine the equal-protection issue without in fact first determining the Republican-Form issue, simply because what is reasonable for equal-protection purposes will depend upon what frame of government, basically, is allowed. To divorce 'equal protection' from 'Republican Form' is to talk about half a question.


The notion that representation proportioned to the geographic spread of population is so universally accepted as a necessary element of equality between man and man that it must be taken to be the standard of a political equality preserved by the Fourteenth Amendment—that it is, in appellants' words 'the basic principle of representative government'—is, to put it bluntly, not true. However desirable and however desired by some among the great political thinkers and framers of our government, it has never been generally practiced, today or in the past. It was not the English system, it was not the colonial system, it was not the system chosen for the national government by the Constitution, it was not the system exclusively or even predominantly practiced by the States at the time of adoption of the Fourteenth Amendment, it is not predominantly practiced by the States today. Unless judges, the judges of this Court, are to make their private views of political wisdom the measure of the Constitution—views which in all honesty cannot but give the appearance, if not reflect the reality, of involvement with the business of partisan politics so inescapably a part of apportionment controversies—the Fourteenth Amendment, 'itself a historical product,' Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 10, 67 L.Ed. 107, provides no guide for judicial oversight of the representation problem.

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4. Contemporary apportionment. Detailed recent studies are available to describe the present-day constitutional and statutory status of apportionment in the fifty States. They demonstrate a decided twentieth-century trend away from population as the exclusive base of representation. Today, only a dozen state constitutions provide for periodic legislative reapportionment of both houses by a substantially unqualified application of the population standard, and only about a dozen more prescribe such reapportionment for even a single chamber. 'Specific provision for county representation in at least one house of the state legislature has been increasingly adopted since the end of the 19th century. * * *' More than twenty States now guarantee each county at least one seat in one of their houses regardless of population, and in nine others county or town units are given equal representation in one legislative branch, whatever the number of each unit's inhabitants. Of course, numerically considered, 'These provisions invariably result in over-representation of the least populated areas. * * *' And in an effort to curb and political dominance of metropolitan regions, at least ten States now limit the maximum entitlement of any single county (or, in some cases, city) in one legislative house—another source of substantial numerical disproportion.


Moreover, it is common knowledge that the legislatures have not kept reapportionment up to date, even where state constitutions in terms require it. In particular, the pattern of according greater per capita representation to rural, relatively sparsely populated areas—the same pattern which finds expression in various state constitutional provisions, and which has been given effect in England and elsewhere—has, in some of the States, been made the law by legislative inaction in the face of population shifts. Throughout the country, urban and suburban areas tend to be given higher representation ratios than do rural areas.

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Excerpts from Complicated Impact of One Person One Vote on Political Competition and Representation, University of North Carolina, 2002

Summary. Substituting pre-Baker lines for today's state senate districts does not produce any wholesale distortion in the translation of votes into seats, nor does it appear to benefit one party or another across states. This finding is all the more remarkable when

one considers that our sample of four states is, if anything, biased in the direction of states in which we would expect to see the greatest

improvement due to court-ordered redistricting following Baker. Perhaps most surprising is that in some states, the pre-Baker lines are actually more favorable to urban interests than present-day apportionments. This is because-as in the case of Maryland and New York-the share of the state population living in urban areas has fallen from 1960s levels. As "unfair" as the pre-Baker lines may have been to urban interests in those days, in some cases they would now produce new "rotten boroughs"-in the emptied-out neighborhoods of places like Baltimore, Erie, and New York City. The lesson learned from this imagined tour is that malapportionment, by itself, is not a sign of poor representation. Indeed, plans drawn under one person, one vote sometimes may be more biased than plans with districts that vary widely in population."


Forty years after Baker v. Carr, we have finally begun to understand the early political effects of the Court's one-person, one-vote rule. Unfortunately for the observer who wanted to see a tally sheet with clear winners and losers, the decisions had complicated effects that were quite context-specific. The impact of the Court's decision depended on a host of other factors and strategies other institutional actors pursued. Just because the impact of the decisions varied from state to state and among institutional contexts does not mean that interesting, systematic effects cannot be observed or that the rationale for the Court's foray into this arena cannot be tested. For those who saw in the redistricting decisions a dream of increased electoral competition at the district level, those hopes have largely been dashed. And for those who thought one person, one vote would prevent those in control of the redistricting process from drawing lines to their advantage, decennial redistricting may have made partisan and bipartisan gerrymandering a more regularized ritual, even if change in control of state legislatures became more frequent in the post-Baker era. On the other hand, new research suggests that the bias (in favor of rural interests or one party's core constituencies) inherent in pre-Baker state legislatures and in the U.S. Congress vanished, in part becauseof judicial supervision of the redistricting process. Finally, Reynolds'srejection of the federal model for state legislatures led to duplicationand similarity between lower and upper houses. Whereas, prior to Reynolds and its companion cases, the two houses of a state's legislature often adhered to different philosophies of representation, afterwards the bases of representation for the two houses were quite similar. Consequently, the partisan makeup of state chambers also became more similar. Baker and its progeny sent an earthquake through a political systemthat was already being tossed and turned in so many directions. Although the turbulence of the time probably had more direct and substantial political effects, the Court's decisions helped express this turbulence in institutional forms. Already weakened by extraordinary events such as the Kennedy assassination, the 1964 election, and the Voting Rights Act, and worn down by long-term trends such as declining party identification and a rising incumbency advantage, the political system that received "one person, one vote" found the new redistricting rules to present opportunities to magnify and codify the changes already taking place. The lessons learned from studying the political effects of one person, one vote are both humbling and illuminating. On the one hand, lawyers and judges ought not exaggerate the rule's independent effect on the political system. Political actors usually find a way to achieve pre-existing goals even under new legal regimes. On the other, new legal rules can seriously exacerbate or help channel concurrent environmental changes. The difficult task for those of us who analyze and advocate for such changes in the law of politics is to learn from these judicial experiments so as to prevent perverse consequences the next time around. Representing as they do the most substantial intrusion of the courts into politics, the one-person, one-vote decisions deserve to be analyzed, even four decades later, so we can discover increasingly relevant lessons about the consequences of judicial regulation for legislative representation and electoral competition.

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