Legislative Reapportionment: The Supreme Court Steps Back

Published June 9, 2016

Justice Clarence Thomas contended the Constitution does not tell the states how to apportion their legislatures at all. His argument was elaborate, and entire books have been written on the subject, but a look at the Constitution itself reveals Thomas is correct.

During the 1960s, Supreme Court justices largely ignored their responsibility to keep the federal government within constitutional bounds. They bullied the states instead, ruling the Constitution’sEqual Protection Clause requires every state to base both houses of its legislature on population. No longer could states give much weight to other factors, such as county and city boundaries. When the voters of Colorado overwhelmingly voted to allow state senate seats to be based on factors other than population, a divided Supreme Court overruled them.

The Equal Protection Clause states, “No State shall… deny to any person within its jurisdiction the equal protection of the laws.” It is one of four rules in Section 1 of the Fourteenth Amendment, adopted in 1868. Those rules were designed to protect newly freed slaves from certain kinds of state tyranny.

What does the Constitution mean when it says that states may not deny “equal protection of the laws”? The most natural reading is states must treat citizens equally. The language addresses “outputs” — law enforcement and state services — rather than citizen inputs, such as voting. If we say a child is entitled to “protection” from his parents, we refer to how his parents treat him. We do not refer to whether the child can dictate to his parents.

Under the natural reading, a state violates the Equal Protection Clause if it protects white people — but not African-Americans — from terrorist groups such as the Ku Klux Klan. Similarly, a state may not deny the right to bear arms to women while allowing it for men. It may not impose stiffer criminal penalties on Lithuanian-Americans or on poor people than on other citizens.

Admittedly, there are times when the most natural reading is not the correct one. One could argue when a state gives more legislative weight to a rural voter than to an urban voter, it also fails to “protect” them equally, but that reading is ruled out by other parts of the Constitution. The very next section of the Fourteenth Amendment acknowledges and accepts the practice of weighing citizen input unequally by acknowledging and accepting the denial of suffrage for women and persons less than 21 years of age. It also acknowledged implicitly a state may disenfranchise some adult males, requiring only that the state’s representation in Congress be reduced proportionately.

If the Equal Protection Clause applied to voting, then Congress could have extended suffrage to racial minorities, women, and others merely by exercising its Fourteenth Amendment authority to enforce the Equal Protection Clause “by appropriate legislation.” Until the Supreme Court rewrote the Clause, however, it was universally recognized that it did not apply to the vote. That is why Americans ratified the Fifteenth Amendment in 1870 to bar states from denying suffrage “on account of race, color, or previous condition of servitude.” That is why Americans ratified the Nineteenth Amendment in 1919 to guarantee women the right to vote. That is also one reason Americans ratified the Twenty-Fourth Amendment, which effectively ended property-based voting restrictions.

So there is little doubt the majority of the justices are wrong and Thomas is right.

What can we do about it? During the 1960s, Sen. Everett Dirksen (R-IL) proposed a constitutional amendment partially overruling the Supreme Court reapportionment cases. The effort stalled with the senator’s death in 1969, but Americans could revive it at any time.

[Originally published at the American Spectator]