# Wesberry v. Sanders/Dissent Harlan

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Mr. Justice HARLAN, dissenting.
I had not expected to witness the day when the Supreme Court of the United States would render a decision which casts grave doubt on the constitutionality of the composition of the House of Representatives. It is not an exaggeration to say that such is the effect of today's decision. The Court's holding that the Constitution requires States to select Representatives either by elections at large or by elections in districts composed 'as nearly as is practicable' of equal population places in jeopardy the seats of almost all the members of the present House of Representatives.
In the last congressional election, in 1962, Representatives from 42 States were elected from congressional districts. In all but five of those States, the difference between the populations of the largest and smallest district exceeded 100,000 persons. A difference of this magnitude in the size of districts the average population of which in each State is less than 500,000 is presumably not equality among districts 'as nearly as is practicable,' although the Court does not reveal its definition of that phrase. Thus, today's decision impugns the validity of the election of 398 Representatives from 37 States, leaving a 'constitutional' House of 37 members now sitting.
Only a demonstration which could not be avoided would justify this Court in rendering a decision the effect of which, inescapably as I see it, is to declare constitutionally defective the very composition of a coordinate branch of the Federal Government. The Court's opinion not only fails to make such a demonstration, it is unsound logically on its face and demonstrably unsound historically.
Before coming to grips with the reasoning that carries such extraordinary consequences, it is important to have firmly in mind the provisions of Article I of the Constitution which control this case:
'Section 2. The House of Representatives shall be composed of Members chosen very second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
'Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative * * *.
'Section 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
'Section 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members * * *.'
As will be shown, these constitutional provisions and their 'historical context,' ante, p. 7, establish:
1. that congressional Representatives are to be apportioned among the several States largely, but not entirely, according to population;
2. that the States have plenary power to select their allotted Representatives in accordance with any method of popular election they please, subject only to the supervisory power of Congress; and
3. that the supervisory power of Congress is exclusive.
In short, in the absence of legislation providing for equal districts by the Georgia Legislature or by Congress, these appellants have no right to the judicial relief which they seek. It goes without saying that it is beyond the province of this Court to decide whether equally populated districts is the preferable method for electing Representatives, whether state legislatures would have acted more fairly or wisely had they adopted such a method, or whether Congress has been derelict in not requiring state legislatures to follow that course. Once it is clear that there is no constitutional right at stake, that ends the case.
Disclaiming all reliance on other provisions of the Constitution, in particular those of the Fourteenth Amendment on which the appellants relied below and in this Court, the Court holds that the provision in Art, I, § 2, for election of Representatives 'by the People' means that congressional districts are to be 'as nearly as is practicable' equal in population, ante, pp. 7-8. Stripped of rhetoric and a 'historical context,' ante, p. 7, which bears little resemblance to the evidence found in the pages of history, see infra, pp. 30-41, the Court's opinion supports its holding only with the bland assertion that 'the principle of a House of Representatives elected 'by the People" would be 'cast aside' if 'a vote is worth more in one district than in another,' ante p. 8, i.e., if congressional districts within a State, each electing a single Representative, are not equal in population. The fact is, however, that Georgia's 10 Representatives are elected 'by the People' of Georgia, just as Representatives from other States are elected 'by the People of the several States.' This is all that the Constitution requires.
Although the Court finds necessity for its artificial construction of Article I in the undoubted importance of the right to vote, that right is not involved in this case. All of the appellants do vote. The Court's talk about 'debasement' and 'dilution' of the vote is a model of circular reasoning, in which the premises of the argument feed on the conclusion. Moreover, by focusing exclusively on numbers in disregard of the area and shape of a congressional district as well as party affiliations within the district, the Court deals in abstractions which will be recognized even by the politically unsophisticated to have little relevance to the realities of political life.
In any event, the very sentence of Art. I, § 2, on which the Court exclusively relies confers the right to vote for Representatives only on those whom the State has found qualified to vote for members of 'the most numerous Branch of the State Legislature.' Supra, p. 22. So far as Article I is concerned, it is within the State's power to confer that right only on persons of wealth or of a particular sex or, if the State chose, living in specified areas of the State. Were Georgia to find the residents of the Fifth District unqualified to vote for Representatives to the State House of Representatives, they could not vote for Representatives to Congress, according to the express words of Art. I, § 2. Other provisions of the Constitution would, of course, be relevant, but, so far as Art. I, § 2, is concerned, the disqualification would be within Georgia's power. How can it be, then, that this very same sentence prevents Georgia from apportioning its Representatives as it chooses? The truth is that it does not.
The Court purports to find support for its position in the third paragraph of Art. I, § 2, which provides for the apportionment of Representatives among the States. The appearance of support in that section derives from the Court's confusion of two issues: direct election of Representatives within the States and the apportionment of Representatives among the States. Those issues are distinct, and were separately treated in the Constitution. The fallacy of the Court's reasoning in this regard is illustrated by its slide, bscured by intervening discussion (see ante, pp. 13-14), from the intention of the delegates at the Philadelphia Convention 'that in allocating Congressmen the number assigned to each State should be determined solely by the number of the State's inhabitants,' ante, p. 13, to a 'principle solemnly embodied in the Great Compromise-equal representation in the House for equal numbers of people,' ante, p. 14. The delegates did have the former intention and made clear provision for it. Although many, perhaps most, of them also believed generally-but assuredly not in the precise, formalistic way of the majority of the Court-that within the States representation should be based on populations, they did not surreptitiously slip their belief into the Constitution in the phrase 'by the People,' to be discovered 175 years later like a Shakespearian anagram.
Far from supporting the Court, the apportionment of Representatives among the States shows how blindly the Court has marched to its decision. Representatives were to be apportioned among the States on the basis of free population plus three-fifths of the slave population. Since no slave voted, the inclusion of three-fifths of their number in the basis of apportionment gave the favored States representation far in excess of their voting population. If, then, slaves were intended to be without representation, Article I did exactly what the Court now says it prohibited: it 'weighted' the vote of voters in the slave States. Alternatively, it might have been thought that Representatives elected by free men of a State would speak also for the slaves. But since the slaves added to the representation only of their own State, Representatives from the slave States could have been thought to speak only for the slaves of their own States, indicating both that the Convention believed it possible for a Representative elected by one group to speak for another nonvoting group and that Representatives were in large degree still thought of as speaking for the whole population of a State.
There is a further basis for demonstrating the hollowness of the Court's assertion that Article I requires 'one man's vote in a congressional election * * * to be worth as much as another's,' ante, p. 8. Nothin that the Court does today will disturb the fact that although in 1960 the population of an average congressional district was 410,481, the States of Alaska, Nevada, and Wyoming each have a Representative in Congress, although their respective populations are 226,167, 285,278, and 330,066. In entire disregard of population, Art. I, § 2, guarantees each of these States and every other State 'at Least one Representative.' It is whimsical to assert in the face of this guarantee that an absolute principle of 'equal representation in the House for equal numbers of people' is 'solemnly embodied' in Article I. All that there is is a provision which bases representation in the House, generally but not entirely, on the population of the States. The provision for representation of each State in the House of Representatives is not a mere exception to the principle framed by the majority; it shows that no such principle is to be found.
Finally in this array of hurdles to its decision which the Court surmounts only by knocking them down is § 4 of Art. I which states simply:
'The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.' (Emphasis added.)
The delegates were well aware of the problem of 'rotten boroughs,' as material cited by the Court, ante, pp. 14-15, and hereafter makes plain. It cannot be supposed that delegates to the Convention would have labored to establish a principle of equal representation only to bury it, one would have thought beyond discovery, in § 2, and omit all mention of it from § 4, which deals explicitly with the conduct of elections. Section 4 states without qualification that the state legislatures shall prescribe regulations for the conduct of elections for Representatives and, equally without qualification, that Congress may make or alter such regulations. There is nothing to indicate any limitation whatsoever on this grant of plenary initial and supervisory power. The Court's holding is, of course, derogatory not only of the power of the state legislatures but also of the power of Congress, both theoretically and as they have actually exercised their power. See infra, pp. 42-45. It freezes upon both, for no reason other than that it seems wise to the majority of the present Court, a particular political theory for the selection of Representatives.
There is dubious propriety in turning to the 'historical context' of constitutional provisions which speak so consistently and plainly. But, as one might expect when the Constitution itself is free from ambiguity, the surrounding history makes what is already clear even clearer.
As the Court repeatedly emphasizes, delegates to the Philadelphia Convention frequently expressed their view that representation should be based on population. There were also, however, many statements favoring limited monarchy and property qualifications for suffrage and expressions of disapproval for unrestricted democracy. Such expressions prove as little on one side of this case as they do on the other. Whatever the dominant political philosophy at the Convention, one thing seems clear: it is in the last degree unlikely that most or even many of the delegates would have subscribed to the principle of 'one person, one vote,' ante, p. 18. Moreover, the statements approving population-based representation were focused on the problem of how representation should be apportioned among the States in the House of Representatives. The Great Compromise concerned representation of the States in the Congress. In all of the discussion surrounding the basis of representation of the House and all of the discussion whether Representatives should be elected by the legislatures or the people of the States, there is nothing which suggests even remotely that the delegates had in mind the problem of districting within a State.
The subject of districting within the States is discussed explicitly with reference to the provisions of Art. I, § 4, which the Court so pointedly neglects. The Court states: 'The delegates referred to rotten borough apportionments in some of the state legislatures as the kind of objectionable governmental action that the Constitution should not tolerate in the election of congressional representatives.' Ante, p. 15. The remarks of Madison cited by the Court are as follows:
'The necessity of a Genl. Govt. supposes that the State Legislatures will sometimes fail or refuse to consult the common interest at the expense of their local conveniency or prejudices. The policy of referring the appointment of the House of Representatives to the people and not to the Legislatures of the States, supposes that the result will be somewhat influenced by the mode, (sic) This view of the question seems to decide that the Legislatures of the States ought not to have the uncontrouled right of regulating the times places & manner of holdin elections. These were words of great latitude. It was impossible to foresee all the abuses that might be made of the discretionary power. Whether the electors should vote by ballot or viva voce, should assemble at this place or that place; should be divided into districts or all meet at one place, shd all vote for all the representatives; or all in a district vote for a number allotted to the district; these & many other points would depend on the Legislatures. (sic) and might materially affect the appointments.
Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed. Besides, the inequality of the Representation in the Legislatures of particular States, would produce a like inequality in their representation in the Natl. Legislature, as it was presumable that the Counties having the power in the former case would secure it to themselves in the latter. What danger could there be in giving a controuling power to the Natl. Legislature?' (Emphasis added.)
These remarks of Madison were in response to a proposal to strike out the provision for congressional supervisory power over the regulation of elections in Art. I, § 4. Supported by others at the Convention, and not contradicted in any respect, they indicate as clearly as may be that the Convention understood the state legislatures to have plenary power over the conduct of elections for Representatives, Including the power to district well or badly, subject only to the supervisory power of Congress. How, then, can the Court hold that Art. I, § 2, prevents the state legislatures from districting as they choose? If the Court were correct, Madison's remarks would have been pointless. One would expect, at the very least, some reference to Art. I, § 2, as a limiting factor on the States. This is the 'historical context' which the Convention debates provide.
Materials supplementary to the debates are as unequivocal. In the ratifying conventions, there was no suggestion that the provisions of Art. I, § 2, restricted the power of the States to prescribe the conduct of elections conferred on them by Art. I, § 4. None of the Court's references to the ratification debate supports the view that the provision for election of Representatives 'by the People' was intended to have any application to the apportionment of Representatives within the States; in each instance, the cited passage merely repeats what the Constitution itself provides: that Representatives were to be elected by the people of the States.
In sharp contrast to this unanimous silence on the issue of this case when Art. I, § 2, was being discussed, there are repeated references to apportionment and related problems affecting the States' selection of Representatives in connection with Art. I, § 4. The debates in the ratifying conventions, as clearly as Madison's statement at the Philadelphia Convention, supra, pp. 32-33, indicate that under § 4, the state legislatures, subject only to the ultimate control of Congress, could district as they chose.
At the Massachusetts convention, Judge Dana approved § 4 because it gave Congress power to prevent a state legislature from copying Great B itain, where 'a borough of but two or three cottages has a right to send two representatives to Parliament, while Birmingham, a large and populous manufacturing town, lately sprung up, cannot send one.' He noted that the Rhode Island Legislature was 'about adopting' a plan which would 'Deprive the towns of Newport and Providence of their weight.' Mr. King noted the situation in Connecticut, where 'Hartford, one of their largest towns, sends no more delegates than one of their smallest corporations,' and in South Carolina: 'The back parts of Carolina have increased greatly since the adoption of their constitution, and have frequently attempted an alteration of this unequal mode of representation but the members from Charleston, having the balance so much in their favor, will not consent to an alteration, and we see that the delegates from Carolina in Congress have always been chosen by the delegates of that city.' King stated that the power of Congress under § 4 was necessary to 'control in this case'; otherwise, he said, 'The representatives * * * from that state (South Carolina), will not he chosen by the people, but will be the representatives of a faction of that state.'
Mr. Parsons was as explicit.
'Mr. PARSONS contended for vesting in Congress the powers contained in the 4th section (of Art. I), not only as those powers were necessary for preserving the union, but also for securing to the people their equal rights of election. * * * (State legislatures) might make an unequal and partial division of the states into districts for the election of representatives, or they might even disqualify one third of the electors. Without these powers in Congress, the people can have no remedy; but the 4th section provides a remedy, a controlling power in a legislature composed of senators and representatives of twelve states, without the influence of our commotions and factions, who will hear impartially, and preserve and restore to the people their equal and sacred rights of election. Perhaps it then will be objected, that from the supposed opposition of interests in the federal legislature, they may never agree upon any regulations; but regulations necessary for the interests of the people can never be opposed to the interests of either of the branches of the federal legislature; because that the interests of the people require that the mutual powers of that legislature should be preserved unimpaired, in order to balance the government. Indeed, if the Congress could never agree on any regulations, then certainly no objection to the 4th section can remain; for the regulations introduced by the state legislatures will be the governing rule of elections, until Congress can agree upon alterations.' (Emphasis added.)
In the New York convention, during the discussion of § 4, Mr. Jones objected to congressional power to regulate elections because such power 'might be so construed as to deprive the states of an essential right, which, in the true design of the Constitution, was to be reserved to them.' He proposed a resolution explaining that Congress had such power only if a state legislature neglected or refused or was unable to regulate elections itself. Mr. Smith proposed to add to the resolution '* * * that each state shall be divided into as many districts as the representatives it is entitled to, and that each representative shall be chosen by a majority of votes.' He stated that his proposal was designed to prevent elections at large, which might result in all the representatives being 'taken from a small part of the state.' He explained further that his proposal was not intended to impose a requirement on the other States but 'to enable the states to act their discretion, without the control of Congress.' After further discussion of districting, the proposed resol tion was modified to read as follows:
'(Resolved) * * * that nothing in this Constitution shall be construed to prevent the legislature of any state to pass laws, from time to time, to divide such state into as many convenient districts as the state shall be entitled to elect representatives for Congress, nor to prevent such legislature from making provision, that the electors in each district shall choose a citizen of the United States, who shall have been an inhabitant of the district, for the term of one year immediately preceding the time of his election, for one of the representatives of such state.'
Despite this careful, advertent attention to the problem of congressional districting, Art. I, § 2, was never mentioned. Equally significant is the fact that the proposed resolution expressly empowering the States to establish congressional districts contains no mention of a requirement that the districts be equal in population.
In the Virginia Convention, during the discussion of § 4, Madison again stated unequivocally that he looked solely to that section to prevent unequal districting:
'* * * (I)t was thought that the regulation of time, place, and manner, of electing the representatives, should be uniform throughout the continent. Some states might regulate the elections on the principles of equality, and others might regulate them otherwise. This diversity would be obviously unjust. Elections are regulated now unequally is some states, particularly South Carolina, with respect to Charleston, which is represented by thirty members. Should the people of any state by any means be deprived of the right of suffrage, it was judged proper that it should be remedied by the general government. It was found impossible to fix the time, place, and manner, of the election of representatives, in the Constitution. It was found necessary to leave the regulation of these, in the first place, to the state governments, as being best acquainted with the situation of the people, subject to the control of the general government, in order to enable it to produce uniformity, and prevent its own dissolution. And Considering the state governments and general government as distinct bodies, acting in different and independent capacities for the people, it was thought the particular regulations should be submitted to the former, and the general regulations to the latter. Were they exclusively under the control of the state governments, the general government might easily be dissolved. But if they be regulated properly by the state legislatures, the congressional control will very probably never be exercised. The power appears to me satisfactory, and as unlikely to be abused as any part of the Constitution.' (Emphasis added.)
Despite the apparent fear that § 4 would be abused, no one suggested that it could safely be deleted because § 2 made it unnecessary.
In the North Carolina convention, again during discussion of § 4, Mr. Steele pointed out that the state legislatures had the initial power to regulate elections, and that the North Carolina legislature would regulate the first election at least 'as they think proper.' Responding to the suggestion that the Congress would favor the seacoast, he asserted that the courts would not uphold nor the people obey 'laws inconsistent with the Constitution.' (The particular possibilities that Steele had in mind were apparently that Congress might attempt to prescribe the qualifications for electors or 'to make the place of elections inconvenient.') Steele was concerned with the danger of congressional usurpation, under the authority of § 4, of power belonging to the States. Section 2 was not mentioned.
In the Pennsylvania convention, James Wilson described Art. I, § 4, as placing 'in o the hands of the state legislatures' the power to regulate elections, but retaining for Congress 'self-preserving power' to make regulations lest 'the general government * * * lie prostrate at the mercy of the legislatures of the several states.' Without such power, Wilson stated, the state governments might 'make improper regulations' or 'make no regulations at all.' Section 2 was not mentioned.
Neither of the numbers of The Federalist from which the Court quotes, ante, pp. 15, 18, fairly supports its holding. In No. 57, Madison merely stated his assumption that Philadelphia's population would entitle it to two Representatives in answering the argument that congressional constituencies would be too large for good government. In No. 54, he discussed the inclusion of slaves in the basis of apportionment. He said: 'It is agreed on all sides, that numbers are the best scale of wealth and taxation, as they are the only proper scale of representation.' This statement was offered simply to show that the slave population could not reasonably be included in the basis of apportionment of direct taxes and excluded from the basis of apportionment of representation. Further on in the same number of the Federalist, Madison pointed out the fundamental cleavage which Article I made between apportionment of Representatives among the States and the selection of Representatives within each State:
'It is a fundamental principle of the proposed Constitution, that as the aggregate number of representatives allotted to the several States, is to be determined by a federal rule founded on the aggregate number of inhabitants, so the right of choosing this allotted number in each State is to be exercised by such part of the inhabitants, as the State itself may designate. The qualifications on which the right of suffrage depend, are not perhaps the same in any two States. In some of the States the difference is very material. In every State, a certain proportion of inhabitants are deprived of this right by the Constitution of the State, who will be included in the census by which the Federal Constitution apportions the representatives. In this point of view, the southern States might retort the complaint, by insisting, that the principle laid down by the Convention required that no regard should be had to the policy of particular States towards their own inhabitants; and consequently, that the slaves as inhabitants should have been admitted into the census according to their full number, in like manner with other inhabitants, who by the policy of other States, are not admitted to all the rights of citizens.'
In the Federalist, No. 59, Hamilton discussed the provision of § 4 for regulation of elections. He justified Congress' power with the 'plain proposition, that every government ought to contain in itself the means of its own preservation.' Further on, he said:
'It will not be alledged that an election law could have been framed and inserted into the Constitution, which would have been always applicable to every probable change in the situation of the country; and it will therefore not be denied that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded, that there were only three ways, in which this power could have been reasonably modified and disposed, that it must either have been lodged wholly in the National Legislature, or wholly in the State Legislatures, or primarily in the latter, and ultimately in the former. The last mode has with reason been preferred by the Convention. They have submitted the regulation of elections for the Federal Government in the first instance to the local administrations; which in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety.' (Emphasis added.)
Thus, in the number of the Federalist which does discuss the regulation of elections, the view is unequivocally stated that the state legislatures have plenary power over the conduct of congresssional elections subject only to such regulations as Congress itself might provide.
The upshot of all this is that the language of Art. I, §§ 2 and 4, the surrounding text, and the relevant history are all in strong and consistent direct contradiction of the Court's holding. The constitutional scheme vests in the States plenary power to regulate the conduct of elections for Representatives, and, in order to protect the Federal Government, provides for congressional supervision of the States' exercise of their power. Within this scheme, the appellants do not have the right which they assert, in the absence of provision for equal districts by the Georgia Legislature or the Congress. The constitutional right which the Court creates is manufactured out of whole cloth.
The unstated premise of the Court's conclusion quite obviously is that the Congress has not dealt, and the Court believes it will not deal, with the problem of congressional apportionment in accordance with what the Court believes to be sound political principles. Laying aside for the moment the validity of such a consideration as a factor in constitutional interpretation, it becomes relevant to examine the history of congressional action under Art. I, § 4. This history reveals that the Court is not simply undertaking to exercise a power which the Constitution reserves to the Congress; it is also overruling congressional judgment.
Congress exercised its power to regulate elections for the House of Representatives for the first time in 1842, when it provided that Representatives from States 'entitled to more than one Representative' should be elected by districts of contiguous territory, 'no one district electing more than one Representative.' The requirement was later dropped, and reinstated. In 1872, Congress required that Representatives 'be elected by districts composed of contiguous territory, and containing as nearly as practicable an equal number of inhabitants, * * * no one district electing more than one Representative.' This provision for equal districts which the Court exactly duplicates in effect, was carried forward in each subsequent apportionment statute through 1911. There was no reapportionment following the 1920 census. The provision for equally populated districts was dropped in 1929, and has not been revived, although the 1929 provisions for apportionment have twice been amended and, in 1941, were made generally applicable to subsequent censuses and apportionments.
The legislative history of the 1929 Act is carefully reviewed in Wood v. Broom, 287 U.S. 1, 53 S.Ct. 1, 77 L.Ed. 131. As there stated:
'It was manifestly the intention of the Congress not to re-enact the provision as to compactness, contiguity, and equality in population with respect to the districts to be created pursuant to the reapportionment under the act of 1929.
'This appears from the terms of the act, and its legislative history shows that the omission was deliberate. The question was up, and considered.' 287 U.S., at 7, 53 S.Ct. at 2.
Although there is little disc ssion of the reasons for omitting the requirement of equally populated districts, the fact that such a provision was included in the bill as it was presented to the House, and was deleted by the House after debate and notice of intention to do so, leaves no doubt that the omission was deliberate. The likely explanation for the omission is suggested by a remark on the floor of the House that 'the States ought to have their own way of making up their apportionment when they know the number of Congressmen they are going to have.'
Debates over apportionment in subsequent Congresses are generally unhelpful to explain the continued rejection of such a requirement; there are some intimations that the feeling that districting was a matter exclusively for the States persisted. Bills which would have imposed on the States a requirement of equally or nearly equally populated districts were regularly introduced in the House. None of them became law.
For a period of about 50 years, therefore, Congress, by repeated legislative act, imposed on the States the requirement that congressional districts be equal in population. (This, of course, is the very requirement which the Court now declares to have been constitutionally required of the States all along without implementing legislation.) Subsequently, after giving express attention to the problem, Congress eliminated that requirement, with the intention of permitting the States to find their own solutions. Since then, despite repeated efforts to obtain congressional action again, Congress has continued to leave the problem and its solution to the States. It cannot be contended, therefore, that the Court's decision today fills a gap left by the Congress. On the contrary, the Court substitutes its own judgment for that of the Congress.
The extent to which the Court depa ts from accepted principles of adjudication is further evidenced by the irrelevance to today's issue of the cases on which the Court relies.
Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274, was a habeas corpus proceeding in which the Court sustained the validity of a conviction of a group of persons charged with violating federal statutes which made it a crime to conspire to deprive a citizen of his federal rights, and in particular the right to vote. The issue before the Court was whether or not the Congress had power to pass laws protecting the right to vote for a member of Congress from fraud and violence; the Court relied expressly on Art. I, § 4, in sustaining this power. Id., 110 U.S. at 660, 4 S.Ct. at 156. Only in this context, in order to establish that the right to vote in a congressional election was a right protected by federal law, did the Court hold that the right was dependent on the Constitution and not on the law of the States. Indeed, the Court recognized that the Constitution 'adopts the qualification' furnished by the States 'as the qualification of its own electors for members of Congress.' Id., 110 U.S. at 663, 4 S.Ct. at 158, 28 L.Ed. 274. Each of the other three cases cited by the Court, ante, p. 17, similarly involved acts which were prosecuted as violations of federal statutes. The acts in question were filing false election returns, United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355, alteration of ballots and false certification of votes, United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368, and stuffing the ballot box, United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341. None of those cases has the slightest bearing on the present situation.
The Court gives scant attention, and that not on the merits, to Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, which is directly in point; the Court there affirmed dismissal of a complaint alleging that 'by reason of subsequent changes in population the Congressional districts for the election of Representatives in the Congress created by the Illinois Laws of 1901 * * * lacked compactness of territory and approximate equality of population.' Id., 328 U.S. at 550-551, 66 S.Ct. at 1198. Leaving to another day the question of what Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, did ctually decide, it can hardly be maintained on the authority of Baker or anything else, that the Court does not today invalidate Mr. Justice Frankfurter's eminently correct statement in Colegrove that 'the Constitution has conferred upon Congress exclusive authority to secure fair representation by the States in the popular House * * *. If Congress failed in exercising its powers, whereby standards of fairness are offended, the remedy ultimately lies with the people.' 328 U.S., at 554, 66 S.Ct. at 1200, 90 L.Ed. 1432. The problem was described by Mr. Justice Frankfurther as '(a)n aspect of government from which the judiciary, in view of what is involved, has been excluded by the clear intention of the Constitution * * *.' Ibid. Mr. Justice Frankfurter did not, of course, speak for a majority of the Court in Colegrove; but refusal for that reason to give the opinion precedential effect does not justify refusal to give appropriate attention to the views there expressed.
Today's decision has portents for our society and the Court itself which should be recognized. This is not a case in which the Court vindicates the kind of individual rights that are assured by the Due Process Clause of the Fourteenth Amendment, whose 'vague contours,' Rochin v. People of California, 342 U.S. 165, 170, 72 S.Ct. 205, 208, 96 L.Ed. 183, of course leave much room for constitutional developments necessitated by changing conditions in a dynamic society. Nor is this a case in which an emergent set of facts requires the Court to frame new principles to protect recognized constitutional rights. The claim for judicial relief in this case strikes at one of the fundamental doctrines of our system of government, the separation of powers. In upholding that claim, the Court attempts to effect reforms in a field which the Constitution, as plainly as can be, has committed exclusively to the political process.
This Court, no less than all other branches of the Government, is bound by the Constitution. The Constitution does not confer on the Court blanket authority to step into every situation where the political branch may be thought to have fallen short. The stability of this institution ultimately depends not only upon its being alert to keep the other branches of government within constitutional bounds but equally upon recognition of the limitations on the Court's own functions in the constitutional system.
What is done today saps the political process. The promise of judicial intervention in matters of this sort cannot but encourage popular inertia in efforts for political reform through the political process, with the inevitable result that the process is itself weakened. By yielding to the demand for a judicial remedy in this instance, the Court in my view does a disservice both to itself and to the broader values of our system of government.
Believing that the complaint fails to disclose a constitutional claim, I would affirm the judgment below dismissing the complaint.
APPENDIX TO OPINION OF MR. JUSTICE HARLAN.
Representatives #fn-s-s District District Districts
Alabama (8)...... ----. ---- ----
Alaska (1)....... ----.---- ----
Delaware (1)..... ----.---- ----
Hawaii (2)....... ----.---- ----
Massachusetts (12). 478,962 376,336 102,
Mississippi (5). 608,441. 295,072 313,369 Missouri (10).. 506,854. 378,499 128,
Nevada (1)....... ----.---- ----
New Hampshire (2). 331,818 275,103 56,
New Mexico (2)... ----.---- ----
North Carolina (11). 491,461 277,861 213,
Pennsylvania (27). 553,154 303,026 250,
South Carolina (6). 531,555 302,235 229,
South Dakota (2). 497,669 182,845 314,
Vermont (1)...... ----.---- ----
West Virginia (5). 422,046 303,098 118,
Wyoming (1)...... ----.---- ----

## Notes

1 Representatives were elected at large in Alabama (8), Alaska (1), Delaware (1), Hawaii (2), Nevada (1), New Mexico (2), Vermont (1), and Wyoming (1). In addition, Connecticut, Maryland, Michigan, Ohio, and Texas each elected one of their Representatives at large.
2 The five States are Iowa, Maine, New Hampshire, North Dakota, and Rhode Island. Together, they elect 15 Representatives.
The populations of the largest and smallest districts in each State and the difference between them are contained in an Appendix to this opinion.
3 The only State in which the average population per district is greater than 500,000 is Connecticut, where the average population per district is 507,047 (one Representative being elected at large). The difference between the largest and smallest districts in Connecticut is, however, 370,613.
4 The Court's 'as nearly as is practicable' formula sweeps a host of questions under the rug. How great a difference between the populations of various districts within a State is tolerable? Is the standard an absolute or relative one, and if the latter to what is the difference in population to be related? Does the number of districts within the State have any relevance? Is the number of voters or the number of inhabitants controlling? Is the relevant statistic the greatest disparity between any two districts in the State or the average departure from the average population per district, or a little of both? May the State consider factors such as area or natural boundaries (rivers, mountain ranges) which are plainly relevant to the practicability of effective representation?
There is an obvious lack of criteria for answering questions such as these, which points up the impropriety of the Court's whole-hearted but heavy-footed entrance into the political arena.
5 The 37 'constitutional' Representatives are those coming from the eight States which elected their Representatives at large (plus one each elected at large in Connecticut, Maryland, Michigan, Ohio, and Texas) and those coming from States in which the difference between the populations of the largest and smallest districts was less than 100,000. See notes 1 and 2, supra. Since the difference between the largest and smallest districts in Iowa is 89,250, and the average population per district in Iowa is only 393,934, Iowa's 7 Representatives might well lose their seats as well. This would leave a House of Representatives composed of the 22 Representatives elected at large plus eight elected in congressional districts.
These conclusions presume that all the Representatives from a State in which any part of the congressional districting is found invalid would be affected. Some of them, of course, would ordinarily come from districts the populations of which were about that which would result from an apportionment based solely on population. But a court cannot erase only the the districts which do not conform to the standard announced today, since invalidation of those districts would require that the lines of all the districts within the State be redrawn. In the absence of a reapportionment, all the Representatives from a State found to have violated the standard would presumably have to be elected at large.
6 Since I believe that the Constitution expressly provides that state legislatures and the Congress shall have exlusive jurisdiction over problems of congressional apportionment of the kind involved in this case, there is no occasion for me to consider whether, in the absence of such provision, other provisions of the Constitution, relied on by the appellants, would confer on them the rights which they assert.
7 Although it was held in Ex Parte Yarbrought, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274, and subsequent cases, that the right to vote for a member of Congress depends on the Constitution, the opinion noted that the legislatures of the States prescribe the qualifications for electors of the legislatures and thereby for electors of the House of Representatives. 110 U.S., at 663, 4 S.Ct. at p. 158, 28 L.Ed. 274. See ante, p. 17, and infra, pp. 45 46.
The States which ratified the Constitution exercised their power. A property or taxpaying qualification was in effect almost everywhere. See, e.g., the New York Constitution of 1777, Art. VII, which restricted the vote to freeholders 'possessing a freehold of the value of twenty pounds, * * * or (who) have rented a tenement * * * of the yearly value of forty shillings, and been rated and actually paid taxes to this State.' The constitutional and statutory qualifications for electors in the various States are set out in tabular form in 1 Thorpe, A Constitutional History of the American People 1776-1850 (1898), 93-96. The progressive elimination of the property qualification is described in Sait, American Parties and Elections (Penniman ed., 1952), 16-17. At the time of the Revolution, 'no serious inroads had yet been made upon the privileges of property, which, indeed, maintained in most states a second line of defense in the form of high personal-property qualifications required for membership in the legislature.' Id., at 16 (footnote omitted).
Women were not allowed to vote. Thorpe, op. cit., supra, 93 96. See generally Sait, op. cit., supra, 49-54. New Jersey apparently allowed women, as 'inhabitants,' to vote until 1807. See Thorpe, op. cit., supra, 93. Compare N.J.Const.1776, Art. XIII, with N.J.Const.1844, Art. II, 1.
8 Even that is not strictly true unless the word 'solely' is deleted. The 'three-fifths compromise' was a departure from the principle of representation according to the number of inhabitants of a State. Cf. The Federalist, No. 54, discussed infra, pp. 39 40. A more obvious departure was the provision that each State shall have a Representative regardless of its population. See infra, pp. 28-29.
9 The fact that the delegates were able to agree on a Senate composed entirely without regard to population and on the departures from a population-based House, mentioned in note 8, supra, indicates that they recognized the possibility that alternative principles combined with political reality might dictate conclusions inconsistent with an abstract principle of absolute numerical equality.
On the apportionment of the state legislatures at the time of the Constitutional Convention, see Luce, Legislative Principles (1930), 331-364; Hacker, Congressional Districting (1963), 5.
10 It is surely beyond debate that the Constitution did not require the slave States to apportion their Representatives according to the dispersion of slaves within their borders. The above implications of the three-fifths compromise were recognized by Madison. See The Federalist, No. 54, discussed infra, pp. 39 40.
Luce points to the 'quite arbitrary grant of representation proportionate to three fifths of the number of slaves' as evidence that even in the House 'the representation of men as men' was not intended. He states: 'There can be no shadow of question that populations were accepted as a measure of material interests landed, agricultural, industrial, commercial, in short, property.' Legislative Principles (1930), 356-357.
11 U.S. Bureau of the Census, Census of Population: 1960 (hereafter, Census), xiv. The figure is obtained by dividing the population base (which excludes the population of the District of Columbia, the population of the Territories, and the number of Indians not taxed) by the number of Representatives. In 1960, the population base was 178,559,217, and the number of Representatives was 435.
12 Census, 1-16.
13 Section 5 of Article I, which provides that 'Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,' also points away from the Court's conclusion. This provision reinforces the evident constitutional scheme of leaving to the Congress the protection of federal interests involved in the selection of members of the Congress.
14 I Farrand, Records of the Federal Convention (1911) (hereafter Farrand), 48, 86-87, 134-136, 288-289, 299, 533, 534; II Farrand 202.
15 'The assemblage at the Philadelphia Convention was by no means committed to popular government, and few of the delegates had sympathy for the habits or institutions of democracy. Indeed, most of them intrepreted democracy as mob rule and assumed that equality of representation would permit the spokesmen for the common man to outvote the beleaguered deputies of the uncommon man.' Hacker, Congressional Districting (1963), 7-8. See Luce, Legislative Pinciples (1930), 356-357. With respect to apportionment of the House, Luce states: 'Property was the basis, not humanity.' Id., at 357.
Contrary to the Court's statement, ante, p. 18, no reader of The Federalist 'could have fairly taken * * * (it) to mean' that the Constitutional Convention had adopted a principle of 'one person, one vote' in contravention of the qualifications for electors which the States imposed. In No. 54, Madison said: 'It is a fundamental principle of the proposed Constitution, that as the aggregate number of representatives allotted to the several States, is to be determined by a federal rule founded on the aggregate number of inhabitants, so the right of choosing this allotted number in each State is to be exercised by such part of the inhabitants, as the State itself may designate. * * * In every State, a certain proportion of inhabitants are deprived of this right by the Constitution of the State, who will be included in the census by which the Federal Constitution apportions the representatives.' (Cooke ed. 1961) 369. (Italics added.) The passage from which the Court quotes, ante, p. 18, concludes with the following, overlooked by the Court: 'They (the electors) are to be the same who exercise the right in every State of electing the correspondent branch of the Legislature of the State.' Id., at 385.
16 References to Old Sarum (ante, p. 15), for example, occurred during the debate on the method of apportionment of Representatives among the States. I Farrand 449-450, 457.
17 II Farrand 240-241.
18 Ibid.
19 See the materials cited in notes 41-42, 44-45 of the Court's opinion, ante, p. 16. Ames' remark at the Massachusetts convention is typical: 'The representatives are to represent the people.' II Elliot's Debates on the Federal Constitution (2d ed. 1836) (hereafter Elliot's Debates), 11. In the South Carolina Convention, Pinckney stated the the House would 'be so chosen as to represent in due proportion the people of the Union * * *.' IV Elliot's Debates 257. But he had in mind only that other clear provision of the Constitution that representation would be apportioned among the States according to populations. None of his remarks bears on apportionment within the States. Id., at 256-257.
20 II Elliot's Debates 49.
21 Ibid.
22 Id., at 50-51.
23 Id., at 51.
24 Id., at 26-27.
25 Id., at 325.
26 Id., at 325-326.
27 Id., at 327.
28 Ibid.
29 Id., at 328.
30 Id., at 329.
31 III Elliot's Debates 367.
32 IV Elliot's Debates 71.
33 Ibid.
34 Ibid.
35 Elliot's Debates 440-441.
36 Id., at 441.
37 The Federalist, No. 57 (Cooke ed. 1961), 389.
38 Id., at 368.
39 Id., at 369.
40 Id., at 398.
41 Id., at 398-399.
42 Act of June 25, 1842, § 2, 5 Stat. 491.
43 Act of May 23, 1850, 9 Stat. 428.
44 Act of July 14, 1862, 12 Stat. 572.
45 Act of Feb. 2, 1872, § 2, 17 Stat. 28.
46 Act of Feb. 25, 1882, § 3, 22 Stat. 5, 6; Act of Feb. 7, 1891, § 3, 26 Stat. 735; Act of Jan. 16, 1901, § 3, 31 Stat. 733, 734; Act of Aug. 8, 1911, § 3, 37 Stat. 13, 14.
47 Act of June 18, 1929, 46 Stat. 21.
48 Act of Apr. 25, 1940, 54 Stat. 162; Act of Nov. 15, 1941, 55 Stat. 761.
49 H.R. 11725, 70th Cong., 1st Sess., introduced on Mar. 3, 1928, 69 Cong.Rec. 4054.
50 70 Cong.Rec. 1499, 1584, 1602, 1604.
51 70 Cong.Rec. 1499 (remarks of Mr. Dickinson). The Congressional Record reports that this statement was followed by applause. At another point in the debates, Representative Lozier stated that Congress lacked 'power to determine in what manner the several States exercise their sovereign rights in selecting their Representatives in Congress * * *.' 70 Cong.Rec. 1496. See also the remarks of Mr. Graham. Ibid.
52 See, e.g., 85 Cong.Rec. 4368 (remarks of Mr. Rankin), 4369 (remarks of Mr. McLeod), 4371 (remarks of Mr. McLeod); 87 Cong.Rec. 1081 (remarks of Mr. Moser).
53 H.R. 4820, 76th Cong., 1st Sess.; H.R. 5099, 76th Cong., 1st Sess.; H.R. 2648, 82d Cong., 1st Sess.; H.R. 6428, 83d Cong., 1st Sess.; H.R. 111, 85th Cong., 1st Sess.; H.R. 814, 85th Cong., 1st Sess.; H.R. 8266, 86th Cong., 1st Sess.; H.R. 73, 86th Cong., 1st Sess.; H.R. 575, 86th Cong., 1st Sess.; H.R. 841; 87th Cong., 1st Sess.
Typical of recent proposed legislation is H.R. 841, 87th Cong., 1st Sess., which amends 2 U.S.C. § 2a to provide:
'(c) Each State entitled to more than one Representative in Congress under the apportionment provided in subsection (a) of this section, shall establish for each Representative a district composed of contiguous and compact territory, and the number of inhabitants contained within any district so established shall not vary more than 10 per centum from the number obtained by dividing the total population of such States, as established in the last decennial census, by the number of Representatives apportioned to such State under the provisions of subsection (a) of this section.
'(d) Any Representative elected to the Congress from a district which does not conform to the requirements set forth in subsection (c) of this section shall be denied his seat in the House of Representatives and the Clerk of the House shall refuse his credentials.'
Similar bills introduced in the current Congress are H.R. 1128, H.R. 2836, H.R. 4340, and H.R. 7343, 88th Cong., 1st Sess.
54 R.S. § 5508; R.S. § 5520.
55 Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795, and its two companion cases, Koenig v. Flynn, 285 U.S. 375, 52 S.Ct. 403, 76 L.Ed. 805; Carroll v. Becker, 285 U.S. 380, 52 S.Ct. 402, 76 L.Ed. 807, on which my Brother CLARK relies in his separate opinion, ante pp. 18-19, are equally irrelevant. Smiley v. Holm presented two questions: the first, answered in the negative, was whether the provision in Art. I, § 4, which empowered the 'Legislature' of a State to prescribe the regulations for congressional elections meant that a State could not by law provide for a Governor's veto over such regulations as had been prescribed by the legislature. The second question, which concerned two congressional apportionment measures, was whether the Act of June 18, 1929, 46 Stat. 21, had repealed certain provisions of the Act of Aug. 8, 1911, 37 Stat. 13. In answering this question, the Court was concerned to carry out the intention of Congress in enacting the 1929 Act. See id., 285 U.S. at 374, 52 S.Ct. at 402, 76 L.Ed. 795. Quite obviously, therefore, Smiley v. Holm does not stand for the proposition which my Brother CLARK derives from it. There was not the slightest intimation in that case the Congress' power to prescribe regulations for elections was subject to judicial scrutiny, ante, p. 18, such that this Court could itself prescribe regulations for congressional elections in disregard and even in contradiction of congressional purpose. The companion cases to Smiley v. Holm presented no different issues and were decided wholly on the basis of the decision in that case.
56 The Court relies in part on Baker v. Carr, supra, to immunize its present decision from the force of Colegrove. But nothing in Baker is contradictory to the view that, political question and other objections to 'justiciability' aside, the Constitution vests exclusive authority to deal with the problem of this case in the state legislatures and the Congress.